sharply from the ordinary County Court." Evidence that the judgment was made by them exclusively is not sufficient to warrant such a conclusion and appears to me of doubtful validity. In exactly what way the judgment was made in the later itinerant Justice Court, it is very difficult to say, but it is highly probable that both in them and in their ancestors in the time of William I. the baronial element in the Court exercised an influence upon the decision disproportionate to its numbers, but it seems to me more than likely that the decision was in form an act of the assembly as a whole.

In many of these cases the county is mentioned, or a group of counties, as attending the commissioners and taking some part in the action of the Court, and in places where there is no such reference, its presence should probably be assumed. The county which attends is probably the County Court which meets the sheriff in its ordinary sessions. The language of the documents in most of the cases would be satisfied if we supposed attendance to be confined to a county jury which speaks for the county in giving testimony, as the hundred juries do for the hundred in Domesday Book. This may be the case in those instances where several counties meet, except for the one county forming the Court, but the later itinerant justices certainly met a County Court, and it is difficult to see how such a practice could have developed out of one in which juries only attended. The natural development would be the other way. The case of Bishop Gundulf against Picot seems also to imply, though not necessarily, the Iormation of a jury from an assembly on the spot. As to the action of the county in making the judgment, nothing further need be said except to call attention again to Geoffrey's judicante in document No. 3 in the Worcestershire case.

We have then in formation of the Court, first, the King's writ, the creative, constitutive fact, without which the Court would have no existence; second, the justice or justices, who represent the King, in meo loco, and who preside over and direct the action of the Court. These two points together determine not merely the

In the itinerant justice system of the twelfth and the first part of the thirteenth centuries, barons from the county, not attending the ordinary county court, were required to attend personally or by representatives, but, so far as I know, barons from other counties were not summoned in addition to the commissioners, though there was nothing in the ideas or practices of that time which would make a summons to them seem unwarranted.

existence but the character of the Court. They make it a King's Court, differing from a great curia only in numbers and in the absence of the King. Its judgment is equivalent to a judgment of the great curia and is so accepted and proclaimed by the King. Third, there is present a specifically summoned baronial element, also a distinguishing mark of the Court and emphasizing its royal character, but apparently not a necessity; and fourth, as the local foundation of the Court, that which brings the local into contact with the royal, is the County Court, undoubtedly the old Saxon Shire Court. The purpose for which this Court is summoned is, however, not to constitute the Court. A local curia regis could unquestionably be constituted for the same purpose without its presence. It is needed to bring the local evidence and the local testimony to bear upon the case in the simplest and most natural way. The institution is essentially Norman in its constitution and in its place in government as a whole, that it, it belongs to the central, not to the local government. These cases should, therefore, not be cited as meetings of the original Saxon Shire Court, though they are evildence of its continued existence, but of this there is of course abundant other evidence.

As to procedure but little can be said, and that little of a general character. We have here no definite information of anything except witness proof and the jury or inquisition. The latter is Norman, the former in the case most fully given shows Norman characteristics. This is to be said of procedure, however, that all the methods of trial in use in Saxon England, compurgation, witness proof, charter proof, the ordeal, were familiar to the Normans in their own Courts in addition to battle and long-continued to be.45 Procedure in local Courts is distinctly one of those cases where Norman and English methods were so closely alike that they easily and imperceptibly ran together into one, and such slight innovations as the Normans may have made could hardly have seemed significant. Even battle which appears to have been unpopular was not out of harmony with Saxon methods. The king's local court and the jury were more decided innovations, but neither was revolutionary and both were adjusted easily to the older local organizations of justice.

Yale University.

George Burton Adams.

45 This statement hardly needs proof, but on the ordeal of the hot iron, see Davis, Cal., No. 146a, (Appendix, No. XVI), dated 5 September, 1082. For a case of its use in the time of William I., in what was probably the great curia of the duchy, see Orderic Vitalis, II. 433.

SOME CONSERVATIVE VIEWS UPON THE JUDI

CIARY AND JUDICIAL RECALL

The New York County Lawyers' Association recently appointed a Special Committee to investigate the causes of discontent with our judicial system and the manner in which justice is administered, and to recommend the abatement of evils, if any, and the correction of weaknesses, if any.

As a member of that Committee I concurred in its report, the substance of which was in part that a large part of the recent agitation is due to an endeavor, in spite of conflicting views, to settle the boundary between the public interest under the police power and the individual right to due process of law; that the doctrine of judicial recall appears largely to have spent its force; that the doctrine of the popular recall of judicial decisions is not rational and in practice would disappoint even its advocates; that both of said projects of recall menace judicial integrity as well as judicial independence; that the power of the Courts to pass upon the constitutionality of legislation has been widely recognized since the very foundation of our Government, both State and Federal, and its denunciation as a usurpation is a fallacy; and that the power should exist to prevent the Legislature from being the ultimate arbiter of the extent of its own powers.

The Committee recommended that judges be compelled (doubtless by the force of public opinion) to recognize that no law should be held unconstitutional unless it clearly transcends the legislative power; that the Federal Supreme Court be authorized to review State judgments; holding that State laws violate the Federal Constitution; that when a State Statute is assailed in the Courts, its Attorney General should have an opportunity to be heard; that the freest criticism of the Bench and its decisions be encouraged; that impeachment and removal be made a ready remedy; and that more care be observed by Legislatures in the form of bills.

But the consideration of the subject of the report necessary to an adequate judgment provoked upon my part the following additional reflections concerning the much-discussed question of the recall of the judiciary and the grounds of the agitation.

THE JUDICIAL POWER AND DUTY TO REGARD THE FEDERAL CONSTITUTION AS THE SUPREME LAW OF THE LAND.

The greatest part of the recent agitation has arisen from the exercise of this power, and many violent, ill-founded and ill-considered views have been expressed condemning it as a usurpation.

I am such a firm believer in the wisdom of our institutions as designed by the framers of the Federal Constitution that I am unwilling and unable to concede to those who would modify them as much of an excuse as many persons appear to concede that they have. As for the contention that the judiciary has usurped any function in declaring legislation unconstitutional, appeal should not only be made to precedent and established usage, but to the logic of a fundamental supreme law. The conclusion seems to me unavoidable that it is unthinkable that the power to disregard a law passed in defiance of a constitutional prohibition or a constitutional limitation of legislative authority should not reside with a judge who is sworn pursuant to the Constitution, to support the latter and whose duty is thereby declared to regard it as the supreme law. It appears logically impossible to conceive that the power to refuse to give effect to a legislative act in defiance of a constitutional prohibition is not resident in a body who are made to take oath1 either actually or in substance, that they will support the Constitution including its prohibitions or to whom it says that it is and must be the supreme law.2

Therefore, there is really no need to point to or rely upon either precedent or usage to establish the proposition. If it were approached anew it would still establish itself, that the judiciary under a written Constitution containing prohibitions which they are sworn to regard as the supreme law, are the possessors of the power to give legal effect to its prohibitions by diregarding laws passed in defiance of them. Any criticism of the exercise of this power is a criticism of the Constitution, and not of those who give effect to it. There are those who thoughtlessly urge that it is a power which should be exercised with wisdom, but this implies that its exercise can, when it seems inexpedient, be avoided; it suggests that it should be used when it seems wise to use it and declined when it seems wise to let it fall into disuse. Such, however, is not the duty of a judge. It is his duty to use the power

1

1 E. g., N. Y. Const., Art. XIII, s. 1; U. S. Judiaciary Act of 1789, s. 8; U. S. Rev. Stats., s. 712; U. S. Judicial Code, s. 257.

2 U. S. Const., Art VI, s. 2.

when the facts present a case where the power exists; it is the right of each litigant to invoke that power and to insist upon its use; he does not resort to the Court for constitutional indication in its discretion, but to learn from it whether the case is one in which its power exists. If the Court determines that the power exists in respect to the situation presented, it is the right of the individual litigant to secure its exercise. It is, therefore, not a power to be used with so-called wisdom, but to be used whensoever its possessor determines that it ixists under the Constitution in respect to the case made before it. It may and does take intelligence, knowledge and accuracy of perception to determine whether the case presents a violation of a constitutional prohibition, but in such case no amount of wisdom would justify a judge in refusing to declare null and void a legislative act which violates a constitutional prohibition.

It has been claimed that there is a growing tendency in the Courts to condemn as unconstitutional legislation designed to promote social welfare. This proposition should not be conceded, but rather that there is a growing tendency among legislators to disregard constitutional prohibitions in enacting legislation to please certain, and perhaps a majority or powerful minority, of their constituents. Let us consider the effect of giving legislators free scope.

The Constitution prohibits the quartering of soldiers in time of peace upon civilians. This was an evil to which individuals had been frequently subjected by arbitrary authority against which they could make no headway, and which was yet unjust; its excuse was undoubtedly the social welfare, but it bore unevenly and unjustly upon individuals. If a Legislature should by unanimous action determine, in order to avoid levying a direct State tax, to quarter one soldier upon every fourth civilian in the State and the act should be declared unconstitutional by the judiciary, this would not illustrate a growing tendency upon the part of the latter, but of the Legislature; it would be a growing tendency on its part to avoid distributing public burdens equitably. So, also, when, in the guise of improving the social welfare, it attempts to fix upon an individual a burden for the benefit of another individ-' ual, and the quartering of the latter upon the former is likewise forbidden by a constitutional prohibition, it is the legislative tendency to act unjustly or at least unconstitutionally that is emphasized by a judicial exercise of the power and the duty to de