EDITORIAL DEPARTMENT burn Esterline replies to Mr. Trickett's article in the last preceding number of the Review, on " The Great Usurpation," in an article entitled, " The Supreme Law of the Land." He declares that, " It appears conclusively that the judiciary, when guarding against the silent and unlawful encroachments of the legislative power upon the Constitution, has been equally observant that the limitations prescribed by the Constitution were intended for the judiciary as well as the legislature." He further says, " Of the standing of an act by Congress, then, there can be no compromise; it is either the supreme law or it is an absolute nullity." "It is absolutely indispensable to the safety and endurance of a free govern ment, that a law passed by the Congress, not in pursuance of the Constitution, should not supersede that instrument."
power vest in Congress the right to limit and control the exercise of the judicial functions of the inferior federal courts at will?" He shows that at the time of the making of our first Constitution, " there was a perfectly well-defined domain of judicial power into which the legislature could not intrude," and that the " new American invention of Con stitutional limitations on legislative power was first employed by the state courts as a weapon with which to crush attempts upon the part of the state legislatures to limit or con trol the machinery through which English justice has been immemorially administered." As a result of the discussion, he draws the following conclusions: — "From the foregoing data we can draw three clear and definite conclusions: (i) In the words of Mr. Justice Story, ' even admitting that the language of the Constitution is not CONSTITUTIONAL LAW (Australia). "Se mandatory and that Congress may con cession," by P. McM. Glynn, Commonwealth stitutionally omit to vest the judicial power in courts of the United States, it can not be Laiv Review (V. iii, p. 193). denied that when it is vested it may be exer CONSTITUTIONAL LAW (India). "The cised to the utmost constitutional extent'; Separation of Executive and Judicial Functions (2) as the Constitution itself has recognized in India," by Arthur James Hughes, Bom and prescribed three codes, to wit, the English common law, English equity, and theadmiralty bay Law Reporter (V. viii, p. 134). code as bodies of clearly defined principles CONSTITUTIONAL LAW (India). "The according to which the judicial powers of the Kathiawar Jurisdiction Cases," involving ques federal courts shall be exercised, such courts tions of jurisdiction over petty native states must administer justice in the cases before of India and the English policy of annexation, them according to the principles as defined in are criticised by A. C. Lyall, in the July Law such codes; (3) that while Congress has an undoubted right to amend each of such codes Quarterly Review (V. xxii, p. 246). within certain limits, it is purely a judicial CONSTITUTIONAL LAW (Judicial Power). question how far that right of amendment An address by Hon. Hannis Taylor, before the shall extend. And here, in my judgment, North Carolina State Bar Association, on the is the crux of the whole matter; it is upon "Independence of the Federal Judiciary," is the limitation of that amending power that the published in the July American Law Review independence of the federal judiciary, so far (V. xl, p. 481). He takes up the question as the inferior courts are concerned, must ever raised during the recent discussion of the Rate depend. If Congress has the right to cut out the basic principles upon which rest the three Bill in Congress, and considers : "( i ) Does the maxim that the three depart codes which the Constitution itself has given ments of power shall forever remain separate to these courts as rules of action, then we may and distinct really impart an independent begin to speak of the omnipotent Congress as existence to the federal judiciary after it has the English speak of the omnipotent parlia once been organized and put in motion by ment." "Just as it is impossible for the legislative congressional legislation; (2) does the fact that the judicial machinery was put in motion power to take away from the courts of law and must be kept in motion by its organizing trial by jury because it is a vital part of their
