such judgment shall not affect, impair, or invalidate the remainder there. of, but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judg ment shall have been rendered. In People v. Charles Schweinler Press,' two judges of the Appellate Division of the New York Supreme Court delivered an opinion which in full reads thus: "However much I might concur with the views of the presiding justice, I think this intermediate court is bound to follow the judgment of the court of last resort. If the Williams case is no longer an authority, it is for the Court of Appeals to say so. We have no power to review their decision. I, therefore, feel myself constrained to dissent upon that case." 8 In Kuhn v. Fairmont Coal Co., Mr. Justice Holmes, of the Supreme Court of the United States, speaking for himself and also for Mr. Justice McKenna and for Mr. Justice White said: "But I suppose it will be admitted on the other side that even the independent jurisdiction of the Circuit Courts of the United States is a jurisdiction only to declare the law, at least in a case like the present, and only to declare the law of the State. It is not an authority to make it. . . In those cases the court followed Chief Justice Taney in Ohio Life Ins. & Trust Co. v. Debolt, 16 How. 416, in recognizing the fact that decisions of state courts of last resort make law for the State. . . . It is said that we must exercise our independent judgment-but as to what? Surely as to the law of the States. Whence does that law issue? Certainly not from us. But it does issue and has been recognized by this court as issuing from the state courts as well as from the state legislatures. When we know what the source of the law has said that it shall be, our authority is at an end. The law of a State does not become something outside of the state court and independent of it by being called the common law. Whatever it is called it is the law as declared by the state judges and nothing else." In Reed v. McCord' the New York Court of Appeals said: "The constitutional convention clearly entertained the opinion that the continued existence of the Court of Appeals was justified only by the necessity that some tribunal should exist with supreme power to authori tatively declare and settle the law uniformly throughout the state. That 7163 App. Div. 620. 9 160 N. Y. 330, 335. court was continued, not that individual suitors might secure their rights, but that the law should be uniformly settled, to the end that the people might understand the principles which regulated their dealings and conduct and thus, if possible, avoid litigation. It was that necessity alone which induced the adoption of the provisions for a second appeal, and the continuance of a single court to finally determine such principles." (See also Section 6 of Cardozo's book on The Jurisdiction of the Court of Appeals of the State of New York.) Near the close of a long and useful career as a teacher of law in the Harvard Law School the late Professor John Chipman Gray put forth a little book on The Nature and Sources of the Law, the teaching of which may fairly be summed up in either one of two short sentences, namely: (a) The Law is whatever the courts administer as such, or (b) Quod placet principi lex est. The book rests upon an assumption or premise of absolutism which for the most part is unexpressed or tacit, but which in one place shines out brightly. In Section 229 of the book Professor Gray says: "Rules of conduct laid down and applied by the courts of a country are coterminous with the Law of that country, and as the first change, so does the latter along with them. Bishop Hoadly has said: 'Whoever hath an absolute authority to interpret any written or spoken laws, it is He who is truly the Law-Giver to all intents and purposes, and not the person who first wrote or spoke them;' a fortiori, whoever hath an absolute authority not only to interpret the Law, but to say what the Law is, is truly the Law-Giver" To the minds of the writers of all these opinions constitutional principles were in a state of total eclipse. None of them makes any attempt to fortify his all-important conclusions by reasoning from constitutional premises. None of them shows the slightest consciousness that any constitutional principle is involved. All of them speak as if their premise of absolutism were a truth in rerum natura. This fact, it is submitted, raises a strong presumption of error against them. Within the United States of America the courts have an authority to interpret all written and unwritten laws and to say what the law is. Is the authority absolute? Nobody will say so. How, then, is the authority limited? The opinions just quoted admit that the authority can be exercised only in the process of adjudicating a lawsuit and must be confined to what is necessary for that purpose, but assert that an interpretation of the law and a declaration of what the law is, made within those limits by the courts generally or by the single court of last resort, bind not merely the parties to the lawsuit but everybody else, so that in this respect the authority is unlimited or absolute. The proposal for the New York short practice bill denies that assertion. How is the issue, thus sharply defined, to be determined? Plainly not by the maxim of the English common law known as the stare decisis rule. Plainly not by any judicial decision, no matter by what illustrious judge rendered, nor by any line of judicial precedents, however long extended. Our courts do not derive their authority from the English common law nor from precedents of their own making. All the authority they have comes from our written constitutions. By those constitutions, and by them alone, can this grave issue be determined. In other words, the legal effect of precedents in this country and the constitutional authority of courts are not two independent and distinct questions, but merely two ways of stating one and the same question. Precedents cannot possibly have the legal effect imputed to them by these quotations unless the courts, under the written powers of attorney which they have received from the people, have the authority which is imputed to courts generally by the acts of Congress and by Professor Gray's book, and which is imputed to appellate courts of last resort by the opinions here quoted from People v. Charles Schweinler Press, Kuhn v. Fairmont Coal Co. and Reed v. McCord. § 4. Reasons for the proposal based on the constitutional principle that no one ought to be deprived of life, liberty or property without due process of law, of which, in the procedure of all courts, a prior hearing is an essential element, are stated in the letter to Mr. Rodenbeck. Reasons based on other constitutional principles may be summarized as follows: A capital element in American constitutional theory has always been the idea that to save all the people from governmental oppression working upon them one by one through the courts, subtly, under the guise of adjudication, it is necessary that the courts should be confined strictly to the business of adjudicating lawsuits and that the legislative and executive powers of government should be vested in distinct bodies of men responsible at frequent intervals directly to the people. In no other way can the fact that judges hold office for life or for long terms of years and the fact that their salaries are irreducible and the fact that they are responsible to nobody for official action not tainted with moral turpitude, be explained or justified. This idea is expressed in the Constitution of the United States and in the Constitution of New York and, as is believed, in the constitutions of all the States, by what is known as the classification of governmental powers and the distribution of them to distinct bodies of men. Having regard, then, to the constitutional classification of powers, is it not plain that the power of making laws which in Kuhn v. Fairmont Coal Co., Justices Holmes, MeKenna and White, on no other authority than that of precedents and without any attention to constitutional principles, ascribed to State courts of last resort, really does not belong to those courts but is vested exclusively in the State Legislatures? To which of the constitutional classes of governmental powers does the power assumed by the New York Court of Appeals in Reed v. McCord belong, namely: "supreme power to authoritatively declare and settle the law uniformly throughout the State?" Is it not plain that this, in the constitutional sense, is not a judicial power but is a legislative power and therefore vested exclusively in the Legislature of New York and not in the Court of Appeals? If the Court of Appeals has that supreme legislative power its decision in a particular lawsuit, made upon hearing only the parties to that lawsuit and with nobody else having either the right or the opportunity to be heard, that a statute is unconstitutional, becomes legally effective whether the court's interpretation of the statute and of the Constitution is right or wrong, and if the interpretation is wrong the legal effect of the decision is to amend the Constitution. If the Court of Appeals has that supreme legislative power its decision in a particular lawsuit made upon a hearing only of the parties to that suit and with nobody else having either an opportunity or a right to be heard, purporting to declare in words the pre-existing customary law, becomes legally effective whether the declaration is correct or erroneous; so that if the declaration is erroneous the rights of the parties to the suit in which the declaration is made are determined by a new law operating retroactively, while in all future cases the lower courts must make their decisions upon the basis of this new law which, however, when it comes again to be considered in the Court of Appeals is liable to be repealed under the supreme legislative power of that court and the rights of the parties determined not by the law as they understood it at the time they acted and as it had been declared by the Court of Appeals, but by another new law operating retroactively. Another capital element in American constitutional theory was developed and convincingly established by Chief Justice Marshall in the famous case of Marbury v. Madison.10. This is the idea that the people ought to be governed not by one law but by a gradation of laws, with the Constitution of the United States at the top of the scale and the unwritten customary laws of the several States at the bottom, and with treaties and statutes of the United States and the constitutions and statutes of the several States standing at 10 1 Cranch. 137, 177. |