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unavoidable circumstances. Nor, outside of a few hot-headed individuals, such as exist in every country, is there any sentiment in this country, in favor of such a step as the annexation of Canada by forcible
It is true that the Canadians, supported as they are by the powerful arm of Great Britain, have proved themselves to be somewhat irritating neighbors; but although we may have little controversies with them now and then, we shall be able to get along amicably with them in the future, as we have in the past. There is no difference, it is believed, between public opinion in Great Britain, Canada and America upon the subject of a war between Great Britain and the United States. That opinion is unanimous to the effect that it would be an appalling calamity and crime, to be obviated by every honorable means. In England the action of Government yields to public opinion more quickly even than in the United States. We expect our British brethren to take a sober second thought and to act reasonably in this matter, and we intend to do so ourselves.
The VENEZUELAN COMMISSION. — The action of Congress left the President free to appoint the Commission suggested by him to investigate the controversy between Great Britain and Venezuela, with reference to the boundary line between British Guiana and the latter country, without the necessity of having them confirmed by the Senate. The patriotic purpose was to leave the action of the President entirely untrammeled, while, at the same time, furnishing him the necessary means with which to proceed. It was a foregone conclusion that the Commission should be composed either of technical lawyers or of professors of international law. But it is not to be denied that there was some disappointment as to the constitution of the Commission when it was made. It had been persistently given out by the press that the two prominent members of the Commission were to be Hon. Edward J. Phelps, and Hon. Robert T. Lincoln, both of whom had acquired the confidence of the British public by acting as our envoys at the Court of St. James. When the appointment was made their names were not put in the list. It is possible that they declined in advance for reasons personal to themselves. It was, however, expected that one of the appointees would be a justice of the Supreme Court of the United States. This expectation was based upon the well-known high reputation which that Court enjoys in England and in other foreign countries. At the same time the policy of taking a justice of the Supreme Court of the United States from his judicial duties and of assigning to him the perVOL. XXX.
formance of political duties, though justified by more than one precedent, was deprecated, on the ground that it would leave the court composed of eight members, who, on some of the important questions pending before it, might turn out to be evenly divided. The appointment of Mr. Justice Brewer was, however, foreshadowed by public opinion. His reputation as a jurist has been greatly advanced by the work which he has done on the Supreme Bench of the United States, and he unquestionably stands very high in the opinion of his countrymen. The other members of the Commission are Frederick R. Coudert, the eminent lawyer of New York, who was one of our counsel in the Fur Seal Arbitration, and who there discharged his duties with distinguished ability. The law firm of Mr. Coudert, the Coudert Brothers, of New York City, have long been, it is understood, the counsel of the French Government in this country. This appointment has been very highly praised, but it has also been somewhat criticised, on the ground that Mr. Coudert has expressed very emphatic opinions in favor of upholding the Monroe Doctrine in respect of this controversy. Another member of the Commission is Hon. Richard H. Alvey, of Maryland, who has been Chief Justice of the Court of Appeals of Maryland, and who, at the present time, is Chief Justice of the recently created Court of Appeals of the District of Columbia. Undoubtedly, strength has been given to the Commission by the appointment of Hon. Andrew D. White, of New York, who has been our envoy at St. Petersburg, and who, as is well known, is the President of the Cornell University. The fifth and last member of the Commission, Hon. Daniel G. Gilman, President of Johns Hopkins University, is less known to the general public than the others, though he is well known as a scholar and as the author of a biography of President Monroe, the author of the Monroe Doctrine. President Gilman has been described as an authority on international law. The Commission is in the aggregate non-partisan. Justice Brewer and Professor White are understood to be allied with the Republican party, while Mr. Coudert and Justice Alvey are Democrats; and President Gilman is non-partisan with possible Republican leanings. The Commission was organized on January 4th, at the office of the Secretary of State in Washington, by the unanimous election of Mr. Justice Brewer, as president.
1 It will be remembered that Mr. the treaty providing for the settlement Justice Nelson, of the Supreme Court of the so-called Alabama Claims by of the United States, was a member arbitration. The fact that Mr. Justice of the diplomatic conference between Harlan, of the same court, was a memthis country and Great Britain which ber of the Fur Seal Arbitration is still met in Washington, and which framed fresher in the minds of our readers.
ENACTMENT OF STATUTES: FRAUDULENT ENROLLMENT - POWER OF A COURT TO SET ASIDE A PRETENDED STATUTE NEVER ENACTED BY THE LEGISLATURE, BUT SIGNED BY THE SPEAKERS OF THE Two HOUSES IN CONSEQUENCE OF A FRAUD PRACTICED UPON THEM. Since the note on this subject published by us in our September-October number, our attention has been recalled to it by several learned correspondents, and one of them has shown us an article on the subject in the July number of the American Law Register, of Philadelphia. That article throws no new light upon the question, but exhibits more conceit than wisdom, and uses disrespectful language toward the Supreme Court of Nortlı Carolina. The writer of it is carried away with the enormity of the fraud practiced upon the legislation of North Carolina, and in his blind zeal overlooks the primary question to be considered, - the power of the judicial branch of the government to interfere in any way with the enactment, enrollment, or publication of laws. It proceeds in total oblivion of the fundamental idea underlying all American constitutional government: that the three departments of the government are independent of each other, and that when any one of them is acting within its appropriate sphere, as prescribed by the constitution, its action cannot be interfered with by either of the others. It overlooks the fundamental idea that by no American constitution that has ever been established, has any power been conferred upon the judicial branch of the government to interfere in any way with the enactment, the enrollment or the publication of a statute. It proceeds in oblivion of the obvious conception that if a fraudulent record is concocted in the legislative department of the government, the judicial department can no more interfere and expunge such record than the legislative department could interfere and expunge a fraudulent record concocted in a proceeding in the judicial department. All official responsibility must rest somewhere and stop somewhere; and the fact that the final action of one of the independent departments of a State government may be erroneous and wrongful, cannot possibly justify the direct interference of another department of the government to correct that wrong; since the same danger may attend its attempted corrective action.
Let us look at this more closely with a special reference to what it was attempted to do in one of the North Carolina cases referred to." A private citizen being a tax-payer of the State, brought an action in one of the judicial courts, before a single judge, the purpose of which was to prove that a document which had been delivered by the clerk of one of the Houses of the Legislature to the Secretary of State, for the
1 29 Am. Law Rev. 734.
? Carr v. Coke, 22 S. E. Rep. 120.
purpose of being enrolled in his office, and published as a statute, was not in fact a statute, but a forgery. In other words, the attempt was to have a single judge annul, and for all purposes, and so as to conclude the rights of the whole people of the State, what purported to be act of the Legislature, at the suit of a * single citizen, on proof that
on proof that the signatures of the speakers thereto had been procured by fraud. Upon what evidence ? Upon such evidence as this private citizen might produce. Upon such evidence as should be satisfactory to this single judge. This evidence might be itself fraudulently concocted. It might be procured by the subornation of perjury. Even if it were honestly produced, the decision of the single judge in weighing it might be erroneous. It thus appears that the proposition was merely the right of a private citizen and tax-payer to take an appeal from the Legislature of the State, through its appropriate machinery, to a single member of the judicial department of the State government, and an appeal on the question whether what purported to be a statute should be published as such. Upon what grounds could this single tax-payer assume to represent the people of North Carolina in such a litigation? His position would not be equal to that of the three tailors of Tooley street, who passed the celebrated resolution, beginning with the words “ We the people of England;” because they were at least three of the people of England, and he was but one of the people of North Carolina. It is also easy
to see that if acts of legislation could be smothered by such a judicial decision, the same influences which were brought to bear to corrupt the legislation of North Carolina in the particular instance, might be brought to bear in the judicial courts to smother a statute inimical to private interests. It would only be necessary to corrupt a single State officer, and then to bring an action against him by a private citizen and taxpayer, the latter being the dummy of the interests seeking to defeat the legislation. But if a judicial court could entertain an action brought by a private citizen to prevent the publication of what purported to be a statute, who would be concluded by its judgment? The statute would still remain among the files of the office of the Secretary of State, authenticated by the signatures of the Speakers of the two Houses, and also by that of the Governor where his approval is required. . The mere arresting of its publication would not deprive it of any of its binding force. It would still be a statute, though not equally accessible to the public. What then is to prevent another private citizen and tax-payer from bringing another action by mandamus against the Secretary of State to compel its publication? Upon what ground could the former action be regarded as an estoppel
against the latter? The judge would be obliged to decide each case upon the evidence before him; and, the parties not being the same, he might be obliged to decide one case one way, upon one state of evidence, and the other case the other way upon another state of evidence; and thus there would be two judgments, one commanding the Secretary of State not to publish the ostensible statute, and the other commanding him to publish it. These suggestions are thrown out for the purpose of showing, notwithstanding the unfeigned respect which the writer has for the character and learning of the dissenting judges in the case under consideration, the insuperable difficulty of their position.
Turning now to the other branch of the question, the right of the judicial courts to judge for themselves, for any purpose connected with the rightful exercise of their jurisdiction, what is law and what is not law, we see no ground to alter the opinions expressed in our former note on this subject. The jurisdiction undoubtedly exists, and it is exercised every day. It is fundamental that it should exist. Conceding the existence of the jurisdiction, everything else is a question of mere procedure - of mere mode and form of the evidence upon which the court will exercise its rightful jurisdiction. And we say, as we said before, that it is the duty of the court to exercise it upon such evidence as will enable it to discover the real truth, and to hold the ostensible statute to be law or no law, for the purposes of the particular litigation before it, according to the real truth and fact of the case.
Coming now to what the courts have actually decided on this questiou, we find that one court has gone so far as to hold that it is competent to hear parol evidence for the purpose of ascertaining whether a statute was duly passed.But there is great difficulty in conceding this position, since parol evidence will not be received in a collateral proceeding to contradict a judicial record, or a sheriff's return, or even a contract between private parties. Another court has contested this position in an able opinion ; 3 and still another has refused to allow parties to stipulate or agree, or admit by their pleadings that a statute was not constitutionally passed, unless that fact is shown by the printed journals, or the certificate of the secretary. On the other hand, a decision in New York is to the effect that the certificate of the presid