by which it should be disregarded. This power has been frequently exercised, and the general result has been to unify the administration of justice throughout the country. A judgment of a State court cannot, indeed, be enforced outside of the State by direct process. No State can clothe its officers with power to execute its orders in another, by the use of force. But in an action on such a judgment, brought in a State other than that where it was rendered, the only defence that can be set up is that it was beyond the jurisdiction of the court. The substantial facts that were in controversy between the parties cannot be tried again. Nor would it be possible even to avoid its effect by showing that it was obtained by fraud.1 Jurisdiction, however, means jurisdiction both over the parties to the suit and the cause of action. A divorce, for instance, granted in a State where neither party really belonged, and where they never lived as man and wife, would be of no force in any other.2 This doctrine of the conclusiveness of State judgments. has become doubly important during the last half-century through the extension of corporate investments and the frequent formation of corporations largely composed of nonresidents, who seek a charter where they can get it on the easiest terms and with the fewest restrictions in favor of the public. If such a company is wound up in the State of its incorporation, and its stockholders, under the laws there existing, are called on to contribute to the payment of its debts, the judgment in these winding-up proceedings can be enforced against them, wherever they may be found.3 There is one other question without reference to which a sketch of the judicial development of American constitutional law, however brief, would be hardly complete. 1 Hanley v. Donoghue, 116 United States Reports, 1. 2 Bell v. Bell, 181 United States Reports, 175. 8 Fish v. Smith, 73 Connecticut Reports, 377; 47 Atlantic Reporter, 711; Hancock National Bank v. Farnum, 176 United States Reports, 640. Constitutions assume the right to make them. They assume a sovereign political power from which they proceed, and certain principles of political science behind that. Justice comes before law. Organized society is created to secure antecedent rights of justice. individuals or groups of individuals. Underlying principles of natural Do Constitutions protect no "rights of man" which they do not assert and enumerate? Or do they impliedly recognize all which can fairly be considered (that is, considered in the last resort, by the judicial department) as original and fundamental? On this point, American law is still in process of development, and it remains uncertain what the final answer will be. In some courts it is held that there are principles of natural justice which underlie all human society, the enforcement of which is an inherent function of the judiciary in any free government. If, therefore, a statute be enacted in contravention of them, the courts can declare it void, although neither any particular provision of the Constitution nor any guaranty which the language of the Constitution can be held to imply, may have been violated. By other courts, statutes are deemed valid which do not offend the governing Constitution, however repugnant they may seem to the common notions of abstract justice and individual right.2 An analogous question, still in dispute, is whether there are not institutional principles to be derived from the history of England and of this country, which debar our legislatures from interfering with the exercise of local self-government, in such ways as taking into their own hands the choice of municipal officers, or requiring the expenditure of money by particular communities in a manner or for purposes distasteful to a majority of their inhabitants. Here, again, the decisions are in conflict.3 1 Calder v. Bull, 3 Dallas' Reports, 386, 388, 398; Goshen v. Stonington, 4 Connecticut Reports, 209, 225; Loan Association v. Topeka, 20 Wallace's Reports, 655; Dennis v. Moses, 18 Washington Reports, 537. 2 State v. Travelers Insurance Co., 73 Connecticut Reports, 255; Cooley on Constitutional Limitations, 49, 508. People v. Council, 28 Michigan Reports, 228; State v. Williams, 68 Connect Fortunately the declaration of rights which forms part of almost every American Constitution, contains phrases of few words but large capabilities for expansive interpretation, from which there is little difficulty in deducing a prohibition against almost every kind of legislation which can be deemed really to infringe upon any part of the field of liberty which is the birthright of an American citizen. Constitutional law the work of the courts. The growth of constitutional law, under our principles of government, is necessarily, in the main, a story of the work of the courts of justice. It is a work sometimes of recognition; sometimes of development. The initiative, however, generally belongs to the legislative or to the executive department. Laws are enacted at the pleasure of the legislature. Executive orders are issued at the will of the Executive. Judicial opinions are only to be had at the suit of those unconnected with the court. They never come unasked. The Constitutions of the States and of the United States have taken much of their color and effect from exertions of power which were never made the occasion of a judicial controversy. Changes of this nature belong to constitutional history, but not to the history of constitutional law. That grows only by recorded decisions, except in the rare instances of a conflict between co-ordinate departments, which never become the subject of a suit. Such was Jefferson's refusal to obey the summons sent him by Chief Justice Marshall, to appear before the Circuit Court at Richmond with certain public papers, as a witness on the trial of Aaron Burr for treason. President Jefferson had a truer sense of the rights of the Executive than Marshall, and his refusal to leave Washington made a constiicut Reports, 131; 170 United States Reports, 304; State v. Denny, 118 Indiana Reports, 382; 21 Northeastern Reporter, 274; State v. Moores, 55 Nebraska Reports, 480; 76 Northwestern Reporter, 175; Mayor v. State, 15 Maryland Reports, 376; Commonwealth v. Plaisted, 148 Massachusetts Reports, 375; 19 Northeastern Reporter, 224; Newport v. Horton, 21 Rhode Island Reports; 47 Atlantic Reporter, 312. tutional precedent superior in force to the order which he disobeyed. Such again was President's Johnson's dismissal of the Secretary of War in disregard of an Act of Congress. His acquittal on impeachment and the repeal of the "Tenure of office" law in 1887 were sufficient proof that his power of appointment under the Constitution involved a corresponding power of removal, years before the Supreme Court of the United States had announced the same doctrine.1 But, in general, it is in the reports of the courts of last resort, first of the United States and then of the several States, that one must look for the successive steps by which as a Constitution of theory gradually becomes a Constitution of practice, the stamp of authority is put on each new evidence of growth or of decay. 1 Parsons v. United States, 167 United States Reports, 324. III REAL PROPERTY 1701-1901 BY GEORGE E. BEERS, M.A., M.L. IN all systems of law, the rules which govern the rights of individuals with reference to their land are among the first to be developed. Agriculture precede commerce and manufacturing, and skill in the cultivation of the soil appears before mechanical invention. The wealth of a primitive people takes largely the form of real property. The simple utensils, the articles of personal use and adornment and the domestic animals, which constitute the personal property of such a people, are insignificant in value and importance in comparison with the land itself. Such articles of personalty are evanescent in their nature, pass by simple manual delivery, and give no occasion for those complicated estates and titles which demand and give rise to a highly developed system of law. Land laws modified. The fact that the land law is developed early in history tends to make it inflexible, and from the circumstance that the wants of society change most slowly in matalways slowly ters relating to land it results that modification of the land law is difficult and gradual. Hence it occurs that as soon as property begins to be held by the members of a community individually and not in common, a system of land law begins to exist; that the system grows and develops, until, still early in history, it becomes a symmetrical and complete whole; and that having thus assumed definite form, it suffers but slight and gradual change, except through legislative action. The antiquity and comparative |