The Green Bag
ment, including pure democracies, rep resentative republics, as well as abso lute and limited monarchies. Its ancient forms and the evidence thereof will only interest the antiquary and the student. A striking and illustrious ancient ex ample of the exercise of such judicial power is to be found in the Democracy of Greece in the brilliant age of Perikles. In the great Court of the Areopagus, the people of Greece lodged the power to declare the acts of their own Assembly void, as being in conflict with the estab lished laws of the country. Nor was this judicial power unknown in Rome, a nation famed for the virility and wis dom of its laws. In the Code of Justinian it is recognized, and discussed. In that system it was a well-known principle that the act of a legislator in excess of his authority was a void act. The same judicial power was frequently exercised in England, prior to the Revolution of 1688. In Rous v. An Abbot, 27 Henry VI, a statute was held void. In Prior of Castlaken v. Dean, 21 Henry VII, it was determined that an Act of Parlia ment could not make the King to be a parson in violation of the Canon Law, which was a part of the English Con stitution. In Gadden v. Hales, in the King's Bench, decided in 1686, it was held that certain provisions in the Con stitution of 25 Charles II, chapter 2, were null and void, as infringing a con stitutional privilege of the King. The same power has been exercised even in Germany and France, and exists today in the courts of Australia.1 1 On the subject of the power of courts to declare legislative acts void, attention is called to the decision of the Judicial Committee of the Privy Council of England. On January 30th, 1913, that body, on an appeal from the Supreme Court of the Province of Alberta of Canada, held that certain legislative acts of the legislature or parliament of the Province of Alberta were void, for the reason that said legislative acts of said parliament or legis lature in effect injured or destroyed civil rights
In addition to the well-known ancient precedents, our forefathers had before them numerous then modern American precedents in which the courts had held legislative acts void. In the eleven years between the Declaration of In dependence and the framing of the Con stitution, nearly all the states had adopted written constitutions. Under these constitutions there had been a number of decisions prior to 1787, in which the courts had held legislative acts void. All of these were well known to the framers at the time that the convention was in session at Philadel phia. Even while that convention was in session, the Supreme Court of North Carolina in the case of Bayard v. Single ton, decided in May, 1787, held an act of the legislature of North Carolina void, because it was in conflict with the con stitution of that state. This decision was well known to the framers. Richard Dobbs Spaight, one of the signers of the Constitution, discussed it publicly before he signed the Constitution. Other members of the convention also knew of the case. James Iredell, who was afterwards a Justice of the Supreme Court, was an attorney in the case. So was W. R. Davie, a member of the convention. There are other illustrations. In Rhode Island, and probably before the North Carolina case, and in 1786, the case of Trevett v. Weeden was decided, in which case it was held that an act of the legislature of Rhode Island, de priving one of a trial by jury was void, because the same was in conflict with the unwritten constitution of Rhode existing beyond the limits of the Province of Alberta. From this it seems that the principle authorizing judicial governmental agencies to hold legislative acts void still exists in portions of the English Government. The case referred to is the Royal Bank of Canada el al. v. The King and the Provincial Treasurer of Alberta.