should be the senior common freemen of the said town and parish of Maidstone as they should stand in order and place of seniority upon the books of admission of freemen of the said town and parish. The defendant, Cutbush, was elected a common councilman pursuant to this by-law. If the by-law was valid, he was properly elected; if the by-law was inconsistent with the charter of incorporation, he was then illegally elected and not entitled to hold the office. The court was unanimously of the opinion that the by-law was bad, that it was contrary to the intention of the charter, Lord Chief Justice Mansfield saying:

It is made by a part of the corporation, to deprive the rest of their right to elect, without their consent. The charter gives this right to the whole body of the commonalty; the by-law confines it to a narrow compass of the sixty seniors only. This expressly contradicts the charter.

Mr. Justice Yates concurred with Lord Mansfield, and added that:

Where a corporation is by charter, and the common-council is created by the charter, they ought (as being the creature of the charter) to be restrained from making any by-laws inconsistent with it, or counteracting the end, intentions and directions of it.

The second of these cases is Campbell v. Hill (Cowper, 204, 212, 213), decided by the King's Bench in 1774, upon the eve of the American Revolution. For present purposes, it is sufficient to say that the Island of Grenada had been captured from the French and ceded to Great Britain by the treaty of February 10, 1763; that by proclamations of King George III dated October 7, 1763, and April 9, 1764, the Crown empowered the Governor, as soon as the state of the Island should permit, to summon a General Assembly in the manner used in the colonies and provinces of America; and that such assemblies should make laws with the consent of the Governor and Council. After the issuance of the proclamation of October 7, 1763, the King issued a further proclamation, laying an export duty of 42 per cent upon all of the commodities produced in the Island. The defendant collected the duties from the plaintiff, who sued in an action of money had and received, to recover the amount of the export duties which he had been obliged to pay. The question was whether the King could, by a later proclamation, lay an export tax upon the produce of the Island when, by the earlier proclamation of October 7, 1763, he had, to quote Lord Mansfield's language, "precluded himself from the exercise of a legislative authority over the island of Grenada." On this point the court was unanimous, holding that "the King had immediately and irrevocably granted to all who were or should become inhabitants, or who had, or should acquire property in the Island of Grenada, or more generally

to all whom it might concern, that the subordinate legislation over the island should be exercised by an assembly with the consent of the governor and council, in like manner as the other islands belonging to the king." As in the case of Rex v. Cutbush, where we have the judicial power declaring the by-law of the parish of Maidstone void as inconsistent with the charter of incorporation, that is to say, the judicial power setting aside an act of the legislature (in this case a corporation) inconsistent with the grant, so in the case of Campbell v. Hall, we have the judicial power taking jurisdiction of an act of the executive and declaring it inconsistent with the law of the land. We are now prepared to consider a leading case of colonial times, in which the judicial power of the mother country set aside an act of the colonial legislature of Connecticut and a judgment of the Connecticut Court of Probate organized under the charter of the colony, as the act and the judgment were in excess of the power granted by the charter. The case of Winthrop v. Lechmere (7 Connecticut Colonial Records, 571), decided by the Privy Council in 1728, involved the validity of an act of the colonial legislature, providing that, in the case of a person dying intestate, the realty should descend to the male and female children of the deceased, and that the male should receive a double portion, contrary to the law of descent in England, which, in such a case, vested all the realty in the male to the exclusion of the female. From the decision of the Connecticut Court, distributing the property according to the colonial statute, the male child, one Winthrop, son of the deceased intestate, appealed to the King in Council to admit an appeal, which had been disallowed by the Connecticut authorities. The appeal was granted and the appeal was referred to the Committee for Hearing Appeals from the Plantations. The question was elaborately argued for the appellant by Sir Philip Yorke, then Attorney General, later Lord Chancellor Hardwicke, and Sir Charles Talbot, then Solicitor General and later Lord Chancellor Talbot, with the result that the Committee for Hearing Appeals from the Plantations advised his Majesty "that the said act for the settlement of Intestate Estates should be declared null and void, being contrary to the laws of England, in regard it makes lands of inheritances distributable as personal estates, and is not warranted by the charter of that Colony." We here have the act of a legislature of a body politic, a colony, and later to be a State of the American Union under this very charter, set aside as null and void by a committee exercising judicial powers.

We are justified in saying that, before the outbreak of the American Revolution, the lawyers and statesmen of England as well as of the colonies were familiar with that conception of judicial power, by virtue of which it refused, as in the case of the Duke of York's claim, to pass upon a political question; by virtue of which it denied to the executive the right to administer

justice between parties litigant and the right to issue proclamations, decree prohibitions inconsistent with the law, or to make law; and by virtue of which a by-law of an incorporated town and an act of the legislature of a colony were held by the judicial power to be in excess of the grant of power contained in the charter.

Case

These are English precedents, with which the lawyers of the colonies were American familiar, or of which they were ignorant at their peril. We have, however, an American case, decided in 1780, one year before the Articles of Confederation creating the Confederacy went into operation, and by the Chief Justice of the court, a framer of the more perfect Union, participating in the trial and disposition of the case. In Holmes v. Walton,' for this is the case to which reference has been made, it appeared that one Walton, acting under a statute of the State of New Jersey passed October 8, 1778, seized goods in the possession of Holmes and Ketcham which had been brought into the American lines from a place in possession of the British, and, in conformity with the statute, Walton took the goods before a Justice of the Peace. And, still acting under the statute, which required the Justice to grant a jury of six men upon the demand of either party and forbade an appeal in case of verdict, a jury of six was appointed, a verdict thereof given in favor of Walton and judgment entered accordingly in his favor. Notwithstanding the inhibition of the statute, the defendant appealed to the Supreme Court of New Jersey, invoking in his behalf section XXII of the Constitution of New Jersey, adopted July 2, 1776, providing "that the inestimable right of trial by jury shall remain confirmed as a part of the law of this colony, without repeal forever," and calling attention to the fact that the verdict of the jury upon which judgment was rendered consisted of six men only, when, " by the laws of the land it should have consisted of twelve men." As a jury of six was unknown to the common law, the defendant insisted that the verdict be set aside. The case was one in which the feeling of the community was with the plaintiff below, who had seized goods found in possession of the British and brought them within the American lines. The court apparently was in doubt, so that it took time to consider, but on September 7, 1780, in the presence of all the judges (among them David Brearley, Chief Justice, and later a delegate of his State to the Constitutional Convention), the following mandate was entered:

This cause having been argued several terms past and the court having taken time to consider the same, and being now ready to deliver their opinion, gave the same seriation for the plaintiffs in certiorari. And on motion of Boudinot for the plaintiffs, judgment is ordered for the plaintiffs, and that the judgment of the justice in the court below be reversed. . .

The American Historical Review, Vol. IV, pp. 456–69 (April, 1899). 'Wambaugh, Cases, Book I, p. 22.

Court Can

Pass on

Constitution

ality of a

Legislative

Act

Extrajudicial Duties

It was natural, therefore, that the framers of the Constitution should regard as a proper exercise of the judicial power a decree of a court setting aside an act of the Congress of the United States, or a provision of the constitution of a State, or an act of its legislature or of the executive department as inconsistent with the grant of power in the Constitution of the United States.

Continuing what may be called the general phase of the subject, there are instructive instances of an attempt to invest judges with the performance of other than judicial duties, which bring into prominence the essence of judicial power and of judicial duty under the constitutional grant. Shortly after the government was organized under the present Constitution, on March 4, 1789, an act of Congress was passed "to provide for the settlement of the Claims of Widows and Orphans barred by the limitations heretofore established, and to regulate the Claims to Invalid Pensions." 1 The duty to determine these claims was assigned to the Circuit Courts of the United States, organized in pursuance of the judiciary act of September 25, 1789. Each of the three Circuit Courts, into which the United States was divided, considered the question, and, although deeply interested in the purpose of the act and desirous of complying with it, insofar as the limits of judicial power would permit them to do so, the judges stated it to be their opinion that the duty imposed by the act was inconsistent with judicial power, and that therefore the court could not, and that the judges should not, comply with it. The Circuit Court for the District of New York, consisting of Jay, Chief Justice, Cushing, Justice, and Duane, District Judge, stated that the judges of the Circuit were unanimously of the opinion:

That by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either.

That neither the Legislative nor the Executive branches, can constitutionally assign to the Judicial any duties, but such as are properly judicial, and to be performed in a judicial manner.

That the duties assigned to the Circuit courts, by this act, are not of that description, and that the act itself does not appear to contemplate them as such; in as much as it subjects the decisions of these courts, made pursuant to those duties, first to the consideration and suspension of the Secretary at War, and then to the revision of the Legislature; whereas by the Constitution, neither the Secretary at War, nor any other Executive officer, nor even the Legislature, are authorized to sit as a court of errors on the judicial acts or opinions of this court.2

The Circuit Court for the District of Pennsylvania, consisting of Wilson and Blair, Justices, and Peters, District Judge, made the following repre

11 Statutes at Large, 243.

"Hayburn's Case, 2 Dallas, 410, Note.

sentation to the President of the United States in a letter dated April 18, 1792:

To you it officially belongs to "take care that the laws" of the United States "be be faithfully executed." Before you, therefore, we think it our duty to lay the sentiments, which, on a late painful occasion, governed us with regard to an act passed by the legislature of the Union.

The people of the United States have vested in Congress all legislative powers "granted in the constitution."

They have vested in one Supreme court, and in such inferior courts as the Congress shall establish," the judicial power of the United States."

This Constitution is "the Supreme Law of the Land." This supreme law "all judicial officers of the United States are bound, by oath or affirmation, to support."

It is a principle important to freedom, that in government, the judicial should be distinct from, and independent of, the legislative department. To this important principle the people of the United States, in forming their Constitution, have manifested the highest regard.

They have placed their judicial power not in Congress, but in "courts." They have ordained that the "Judges of those courts shall hold their offices during good behaviour," and that "during their continuance in office, their salaries shall not be diminished."

Congress have lately passed an act, to regulate, among other things, "the claims to invalid pensions."

Upon due consideration, we have been unanimously of opinion, that, under this act, the Circuit court held for the Pennsylvania district could not proceed;

1st. Because the business directed by this act is not of a judicial nature. It forms no part of the power vested by the Constitution in the courts of the United States; the Circuit court must, consequently, have proceeded without constitutional authority.

2d. Because, if, upon that business, the court had proceeded, its judgments (for its opinions are its judgments) might, under the same act, have been revised and controuled by the legislature, and by an officer in the executive department. Such revision and controul we deemed radically inconsistent with the independence of that judicial power which is vested in the courts; and, consequently, with that important principle which is so strictly observed by the Constitution of the United States.1

The Circuit Court for the District of North Carolina, consisting of Iredell, Justice, and Sitgreaves, District Judge, thus addressed the President of the United States on June 8, 1792:

1. That the Legislative, Executive, and Judicial departments, are each formed in a separate and independent manner; and that the ultimate basis of each is the Constitution only, within the limits of which each department can alone justify any act of authority.

2. That the Legislature, among other important powers, unquestionably possess that of establishing courts in such a manner as to their wisdom

12 Dallas, 411, Note. For the facts of the "painful occasion" referred to above, see post, p. 365.