"We must not be in a hurry to get to the beginning of the long history of our law. Very slowly we are making our way towards it. The history of law must be a history of ideas. It must represent, not merely what men have done and said, but what men have thought in bygone ages. The task of reconstructing ancient ideas is hazardous, and can only be accomplished little by little. If we are in a hurry to get to the beginning we shall miss the path. Against many kinds of anachronism we now guard ourselves. We are careful of costume, of armour and architecture, of words and forms of speech. But it is far easier to be careful of these things than to prevent the intrusion of untimely ideas. In particular there lies a besetting danger for us in the barbarian's use of a language which is too good for his thought. Mistakes then are easy, and when committed they will be fatal and fundamental mistakes. If, for example, we introduce the persona ficta too soon, we shall be doing worse than if we armed Hengest and Horsa with machine guns or pictured the Venerable Bede correcting proofs for the press; we shall have built upon a crumbling foundation. The most efficient method of protecting ourselves against such errors is that of reading our history backwards as well as forwards, of making sure of our middle ages before we talk about the archaic,' of accustoming our eyes to the twilight before we go out into the night."

F. W. MAITLAND: DOMESDAY BOOK AND BEYOND

CHAPTER I

Introduction

NE of the most remarkable generalizations in

Professor Dicey's brilliant book, The Law of the Constitution, is the statement that "federalism substitutes litigation for legislation." This statement has a peculiar importance in countries-of which there are so many on the continent of Europe-whose central institutions have in large part been consciously modelled in recent times upon those of England. Its importance is greater still in a country like our own, where not only central but local institutions as well stand to the English Constitution in the infinitely closer and more intimate relationship of parent and child.

That there is an extraordinary amount of litigation here that we are a "litigious people"- may be admitted at once. It is true that constitutional matters of the highest concern to the people are commonly settled in the United States by private actions between individuals,-matters often that would never in the ordinary course come before an English court of law.

This is so well understood that illustration is unnecessary, and so noticeable a part of our system that it has probably attracted more attention among foreign observers than any other of our institutions. De Tocqueville was struck with awe at the power of a

1 Page 175 (7th ed.).

court that could summon "sovereign powers to its bar."1 Our Supreme Court, and-it should not be forgotten-others of our courts as well, do adjudicate matters of supreme constitutional importance; but, to an American and to an English eye, "there is nothing strange or mysterious" in this.2 For, after all, the only material difference between the activity of our federal courts and that of an English court lies in the fact that our courts have a constituent law to interpret; the English courts have none. In organization and functions they are essentially alike.

It may be said, then, that our surplus litigation must be due to that constituent law, -to our written constitution. It will be readily admitted that a written and a "rigid" constitution is a practical necessity in a modern federal state. The complex machinery of such a composite state as the United States would be unworkable without it. Does it follow, however, that the deflection of constitutional questions toward the courts, here so noticeable, is the result wholly, or even in part, of our having a written and a "rigid" constitution? To put the question concretely: May we say that the power or duty of our federal courts by virtue of which they submit acts of Congress to the test of a comparison with the higher constituent law, is a power due to our having a written constitution? Or must we

1 Democracy in America (tr. by Reeve), 4th ed., vol. i. p. 160.

2 Bryce, American Commonwealth, 3d ed., vol. i. pp. 250-6.

3 Dicey, Law of the Constitution, p. 142.

not say that it is due to something entirely different? An examination of the constitution of Switzerland or of the German Empire would seem to set that question at rest. In neither of these two great non-English federations is the interpretation of the acts of the legislature entrusted to the courts; though in one of them, namely, Switzerland, the constituent law is marked off from ordinary legislation almost if not entirely as definitely as is our own.

It seems not true, then, that a judicial interpretation is a necessary accompaniment to a written constitution. "So far as the grounds for this remarkable power are found in the mere fact of a constitution being in writing, or in judges being sworn to support it, they are quite inadequate.”1 If our federal judges have no powers not common to an English judge, save the power of interpreting laws by the light of a higher constitution, and if a higher constitution does not necessarily confer on the courts the power to interpret it; then it is very hard to see how federalism in itself has anything directly to do with constitutional interpretation, or with the settlement of constitutional questions by litigation rather than by legislation alone.

And yet, in the United States, where modern federalism has had the longest development, and in the greater self-governing colonies of England, where the federal principle is increasingly active, it is true that this idea of the judicial review of legislation, this liti1Thayer, Legal Essays, p. 2.

L

gious attitude toward constitutional questions, is deeply interwoven with the political thought of the people. If Professor Dicey had confined his statement to federations in English-speaking countries, it would be true; but true, because the countries are English-speaking, and not because they are organized under a federal system. In short, the idea of a judicial review of legislation, and of a constituent law as well, are in origin English ideas, and arise in no way from federalism itself. Their source is to be sought in English history rather than in the conditions of modern political life.

The origin and development of these ideas in England, and their transfer to America, where they have had a fuller growth than in the mother country, will make up the bulk of this essay.

The beginnings of that development are wrapped up with the beginnings of Parliament itself. It will be necessary, therefore, to preface our account of a judicial review of legislation with a summary statement of the character of the English central assemblies in the period following the Norman Conquest. The accuracy of any such description of the mediaeval English Parliament will depend mainly upon our understanding of the spirit and working of those political institutions which we generalize under the name of feudalism. Any general description of feudalism or discussion of the vexed question of its introduction into England would be out of place here, but no adequate idea of