The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
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.]
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