Fashions in tJie Law. the fence, and the whole judicial herd follow him, carrying the fence in with them on their backs. That is one way in which law is made. That is one way in which it grows. That is one way in which the " wisdom of ages " is founded and built up. A great German poet, according to one translation, said : — "Laws, like inherited disease, descend. And slyly wind their way from age to age." They do not always " slyly wind their way," but in some cases the entire judicial herd take a stampede in one direction, like a herd of frightened Texas steers, and proceed with such violence as to carry everything before them for the time. Legislation cannot keep up with them. The legislatures, that hold only biennial sessions of a few months, have not the time to undo the mischief which they commit, being always in session and always at work. They, on the other hand, in their work of superintending legislation, under the new doctrine of " judicial supremacy," have not the time, though constantly at work, to undo the mischief which the leg islatures commit in their short biennial ses sions. The decision of the Supreme Court of the United States in Marbury v. Madison,1 holding that where a judicial court is called upon to enforce a statute which has been enacted in disregard of a provision of the Constitution, the statute must give way and the Constitution must be sustained, was undeniably logical; since the judges were, by the very terms of their oaths of office, bound to support the Constitution, and were not sworn to support acts of the legislature. But it cannot escape attention that the power to declare a statute void as being unconstitional, had never been in express terms con ferred upon a judiciary. The exercise of it gave the judicial branch of the government a superintending control over the legislative branch, and thereupon the legislative branch 11 Cranch (U. S.) 137.
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ceased to be coordinate with the judicial branch : the one was dominant, the other servient. It is not to be wondered that this new doctrine was not accepted without a struggle. The appointed judges of England had never done anything for liberty. The growth of liberty, both in England and in the American Colonies, had taken root in the breasts of the people, and had been voiced in their free legislative assemblies. Never theless, the new doctrine took a foothold and became a fashion. Through the care less indifference of the people and their habit of electing incompetent and corrupt persons to their legislatures, and of endeav oring to curtail the mischief which the per sons so elected might accomplish, by limit ing their sessions to brief periods, the legislative power has sunk entirely beneath the judicial power. Incompetent and cor rupt legislators, holding brief and hurried sessions, working under a sense of irrespon sibility, growing out of the feeling that if their acts are unconstitutional, the courts will so decide, — do immense mischief and keep business men in a constant state of terror. The judicial courts, sitting all the time save a short summer vacation, have enough to do to uncreate the mischief which these turbu lent popular bodies have created. The old doctrine was that acts of legislation would not be set aside unless they clearly appeared to be opposed to the Constitution. This doctrine is still professed; but exactly the contrary doctrine obtains in practice. The practice now obtains of setting aside solemn acts of legislation, in flippant judicial opin ions, and on the most trivial grounds. The popular mind has become so accustomed to it, that in many of the States of the Union, an act of the legislature is regarded as " no good," until it has been " tested " in the courts. This seems to be one of the " fash ions in the law" which, as the doctors say, "persists." Acts of sovereign legislation have sunk to the grade of corporate by-laws, and are constantly set aside because, in the
