"word of honor" reason did not seem entirely appropriate. But, whatever the propriety of her scruples, the significant feature of the incident was the apparent attempt by a pressmember to set up a privilege so unique and so comprehensive. The Code of California (C. C. P., § 2066), declares that "it is the right of a witness to be protected from irrelevant questions;

to be examined only as to matters legal and pertinent to the issue; and by the plain construction of this language (as ruled in Ex parte Zeehandelaar, 71 Cal. 239) the witness was privileged to refuse an answer to the question if it was irrelevant. This the judge, after much hesitation, decided it to be, and the answer was not compelled. It is a matter of regret that the legislators should have enshrined in their code so anomalous and so unsound a doctrine. Irrelevancy or impertinency is on principle an entirely different thing from privilege, and the witness has no such interest as entitles him to protest on his own account against such evidence. It is his business to aid justice by answering, and let the parties see to the consequences. Apart from the confusion of principle involved, observe the pernicious practical effects of this doctrine. Here was a trifling piece of evidence, not affecting a legally recognized interest or privilege of the witness, which the court, in accordance with its excellent policy of deciding doubtful matters for the defense, would undoubtedly have admitted, had not the claim of privilege been made and thus the alternative been presented of sending a woman and a press-member to jail for contempt. Should this petty piece of evidence now be ruled by the Supreme Court to have been relevant or pertinent, the judgment may be reversed, and the enormous expense of money, time, and effort involved in this trial will have been wasted, with the risks of a failure of justice on another trial greatly increased.

1 "The opinion of a witness that the question is irrelevant is entitled to no consideration. If that is his only objection to answering, there can no injury result to him from compelling him to answer. * The objec

tion to the relevancy or competency of evidence is for the parties litigant to make, and not for the witness." Ex parte McKee, 18 Mo. 599, refusing a release on habeas corpus to an editor committed for declining to answer.

Nothing could have offered such a threat to the cause of justice as this claim of privilege made on a petty matter by a person having no recognized interest. It is to be hoped that this practical illustration of the unfortunate policy of the doctrine of the California Code will be taken to heart in those jurisdictions in which this subject is yet to be ruled upon.

NORTHWESTERN UNIVERSITY LAW SCHOOL,

CHICAGO.

JOHN H. WIGMORE.

THE SUPREME COURT OF THE UNITED STATES AS EXPOUNDER OF THE CONSTITUTION.

66

Since the decision of the Supreme Court of the United States, declaring void the Income Tax law, a number of legal writers have questioned the power of the Supreme Court to declare void an act of Congress on the ground of unconstitutionality. One of these writers 1 asserts that the court has no such power; that its ancient prerogative of expounding the constitution is "selfassumed" "without constitutional warrant," and based only on the plausible sophistries of John Marshall." He expresses a doubt whether we are now living under a constitutional form of government, and intimates that during all these years we have been duped into living under a form of government foisted on us by judicial sleight-of-hand — a kind of political changeling. He recommends the wholesale impeachment of the Supreme Court for the Income Tax decision to teach the judges a needed lesson in keeping their hands off legislative functions of the government.

Now, however men may differ as to the wisdom of recent dedisions of our highest court, it is not at all likely that these animadversions will be unanimously concurred in by the American bar. Aimed at the highest prerogative of the court, which has been exercised for a century 2 and acquiesced in by the people; which has received the sanction of the most profound juridical writers, and which has excited the admiration of British statesmen, they will be accepted only on the presentation of

3

1 "The Income Tax and the Power of the Supreme Court to Nullify Acts of Congress" by Sylvester Pennoyer, American Law Review, July-August, 1895. "Notes," ibid.

2 Cohens v. Virginia, 6 Wheaton, 264-384, per Marshall, C. J., Marbury v. Madison, 1 Cranch, 137; Fletcher v.

Peck, 6 Cranch, 87, 128; 1 Kent's Com. 13th ed., 296.

3 Story Exposition of the Constitution, 181; Hare Constitutional Law, 139; Cooley Constitutional Limitations,160; 1 Kent's Com. 504.

4 Bryce American Commonwealth,

I, 249.

the most convincing authority and under the most solemn and irresistible sense of error. At any rate the question is of so great portent that it deserves the most patient and thorough investigation.

The words of the constitution are "the judicial power of the United States shall be vested in one Supreme Court." In the enumeration of the court's powers, the language is: "The judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States," etc.2 The question thus arises, does the jurisdiction over "cases arising under this constitution" fairly carry with it the right to declare void acts of Congress in excess of powers delegated by the constitution to the legislature?

3

A maxim which lies at the root of this government is that its co-ordinate branches - legislative, executive and judicial — shall be kept separate and distinct. To prevent encroachments by one department on another, each was in various ways made a check on the other. The people by the constitution delegated to each department various powers and prescribed various limitations beyond which it could not go. It is an elementary principle in the law of agency that acts done by one in excess of the authority delegated to him are absolutely void. By a parity of reasoning acts passed by the legislature in excess of the powers delegated to it by the constitution are void. But who is to say whether these powers have been exceeded or these limitations broken through? What is to stand in the way of usurpation by one department on the prerogatives of another and what tribunal shall say what is usurpation and what is not? Is it possible that we have been given a constitution without provision being made for its exposition? Or shall it be said that each department shall judge for itself the validity of its acts shall be judge in its own cause? That such was not the intention of the constitution-makers must be evident to every thinking

person.

The judges are sworn to support the constitution of the United

1 Article III, Sec. 1.

2 Art. III, Sec. 2.

3 Speech of James Madison. Elliott's Debates, Vol. V, 164.

4 Federalist, No. 78.

States which the people ordained the supreme law of the land." They are not sworn to support the Congress of the United States. If, then, a case comes before them drawing in question the validity of an act of Congress and they find the paramount law has been violated it is their duty to declare the act void. In so doing they are merely giving judicial expression to a past fact, the law if void at all being void ab initio. No citizen is bound to obey a law passed in excess of legislative powers,2 but it is only after it has been pronounced void by the judiciary that the ordinary individual deems it safe to ignore it.3 The court therefore does only what every citizen may do for himself in setting aside ultra vires acts of the legislature. All the judges have to do is ascertain from the instrument what is the will of the people and if they find that it has been perverted by the act under consideration, they cannot do otherwise than to so declare.

If it were otherwise what would be the result? Before Congress would pass an act its constitutionality would be argued pro and con and finally it would pass by the usual party vote. Thus the lawmakers would also become the expositors of the laws, which is subversive of the first principles of government. The legislature being supreme within itself could proceed to pass laws depriving persons of life, liberty or property without due process of law, and when such law should come before the judges, they needs must sit idly by, the mute and helpless witnesses of an infraction of the most sacred rights vouchsafed us by the constitution. The only remedies for the people would be to elect a new legislature or overturn the government. They would have to endure the obnoxious law until they could seat new legislators, while, if they took the other course, they would be plunged into a state of anarchy more horrible than the Terror.

If danger lurks in any department of the government, it is not

1 Cooley, Constitutional Limitations, 160; Story Exposition of the Constitution, 181; 1 Kent's Com. 296.

2 Huntington v. Worthen, 120 U. S. 101; Norton v. Shelby County, 118 U. S. 442; Cooley Const. Lim., 188.

3 Ibid.

4 There is no liberty if the power of judging be not separate from the legislative and executive departments." Montesquieu, Spirit of Laws, Vol. I, 181; Federalist, No. 78; Speech of Gerry, Elliott's Debates, Vol. V, 345.