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Page:Harvard Law Review Volume 1.djvu/320

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Such, however, was the course pursued in the present case, for Chief Justice Waite in his opinion declares that “Before considering whether the Constitution of the United States has the effect which is claimed, it is proper to inquire whether the federal questions relied on in fact arise on the face of this record,” the course of his opinion showing that by this he means whether there was any violation of the rights claimed; and he proceeds to show that “even if their position as to the operation and effect of that Constitution is correct, the statute is not open to the objection which is made against it,” concluding by saying that “the federal questions presented by the counsel for the petitioners, and which they say they desire to argue, are not involved in the determination of the case as it appears on the face of the record,” again meaning that the action of the State courts shows no violation of the rights, if any such exist. The federal question must arise on the face of the record, in the sense of rights claimed under the Constitution having been asserted at the proper time as an objection to the action of the State courts, else the court would have refused the writ shortly on that ground, which would of itself be absolutely conclusive. And if arising so as to make necessary a further investigation of the record, it would seem that a more proper course might have been to decide whether the rights alleged existed; for if they did not, there was no occasion to act as censor of the State of Illinois and consider the manner in which its legislature had performed its duties. And if the alleged rights had no existence it was equally unnecessary to sit as a court of review, minutely studying the evidence on which the trial judge was satisfied that individual jurors were qualified under the State laws,—a matter as to which Mr. Justice Field, delivering the unanimous opinion of the court in Hopt v. Utah, 120 U. S. 430, a writ of error to a territorial court, and thus bringing up the whole record for review, pronounced the opinion of the trial judge conclusive. Both of these investigations are of matters as to which, so long as the national Constitution is not violated, the States are supreme and independent; and before entering upon such a field it would seem that the question of national law, to obtain a decision on which alone these writs of error are provided, should have been first settled, in order to avoid any semblance of unwarranted interference with the State’s authority.

By the course followed, the constitutional question as to the