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those who are his seniors at the bar. The title of dean (doyen) belongs to the senior members of the bar inscribed on the roll; but it confers no other privilege than that arising from seniority. The bâtonnier, the former bâtonniers, and the deputies from the columns form a council, which meets in the Advocates' Library, and whose chief object is the preservation of the discipline of the order.
The bâtonnier himself adjudicates upon trifling complaints against members of the bar; but if the matter is of consequence, he reports it to the council. If the suspension of a member, or the erasure of his name from the roll, is to be deliberated on, the bâtonnier, after examining into the matter, reports to the crown counsel, and their decision is registered. In the most important and serious cases the court is petitioned to give judgment in terms of the requisitions of the bâtonnier and the conclusions of the crown counsel. At the expiration of his term of office, the bâtonnier makes up the roll of advocates, with the assistance of the former bâtonniers and the deputies, and deposits it in the register before the 9th of May.
ARTICLES IN PERIODICALS—CONTINUED Right to FREIGHT ON Prize CARGOES. E. S. Roscoe. L. Q. Rev. XXXVIII
350. PORTLAND MINISTRY AND THE HISTORY OF CONTINUOUS VOYAGE. T. Baty.
L. Q. Rev. XXXVIII 359. COMPARATIVE JURISPRUDENCE IN ITALY WITH REGARD TO PRIVATE ENGLISH
Law. Mario Larfatti. L. Q. Rev. XXXVIII 371. ONE HUNDRED LEGAL NOVELS. John H. Wigmore. Mass. L. Q. VII 1. FULL BENCH ARGUMENTS. Lee M. Friedman. Mass. L. Q. VII 35. SHORT FORMS OF PROBATE Bonds. F. W. Grinnell. Mass. L. Q. VII 40. HARD LABOR AS AN “INFAMOUS PUNISHMENT" UNDER FEDERAL CONSTITUTION.
F. W. Grinnell. Mass. L. Q. VII 46. EFFECT OF NOTICE TO BUYER OF INTENDED RESALE BY AN UNPAID SELLER.
Mass. L. Q. VII 51. THE CONTRIBUTIONS OF JOHN L. THORNDIKE TO THE Mass. STATUTE BOOK.
F. W. Grinnell. Mass. L. Q. VII 61. SUGGESTION FOR BAR EXAMINATIONS IN Mass. F. W. Grinnell. Mass. L. Q.
VII 3. NEUTRALITY OF BRITISH DOMINIONS. C. D. Allin. Mich. L. Rev. XX 819. Some GREEK LEGAL PAPYRI FROM THE Mich. COLLECTION. A. E. R. Book.
Mich. L. Rev. XX 839. MINISTERIAL AND DISCRETIONARY OFFICIAL Acts. Edwin W. Patterson.
Mich. L. Rev. XX 848. STATUTE LAW AND THE Law SCHOOL. Walter F. Dodd. No. Car. L. R. 1 1. CHANGES IN NORTH CAROLINA PROCEDURE. Atwell Campbell McIntosh. No.
Car. L. Rev. I 7. TRADE ASSOCIATIONS AND THE SHERMAN Act. Homer Hoyt. No. Car. L.
Rev. I 21. SHARES OF STOCK WITHOUT PAR VALUE. James H. Pou. No. Car. L. Rev.
I 142 .
Article VI of the federal Constitution provides that “This Constitution, and the laws of the United States which shall be made in pursuance thereof... shall be the supreme law of the land.” If it be conceded that legislative bodies never transcend federal constitutional limitations there is no law above the supreme law of the land as thus defined. But, if the people at times demand and their representatives enact unconstitutional legislation, which, because of human infirmity, the processes of law do not always correct, there is imposed upon the supreme law of the land, as defined in the constitution, a law that is above and beyond it—a law that is super-supreme. It is the object of this paper to consider the tendency toward the creation of law of this character. In fact, it is more than a tendency—it is a realized condition.
Lawyers need not be told that in these later years the courts are sustaining enactments which a generation ago would have received little support in the legislative, much less in the judicial, branch of government. Within less than two score of years we have witnessed the enactment of innumerable state and many federal statutes more and more impairing those rights of the individual which have always hitherto been regarded as fundamental and beyond the reach of legislative action. Prior to 1906 the people of this country were so little governed by their federal government they scarcely realized that they were governed at all. Their contact with the postmaster and the postman was about all they had to remind them of it. The tariff and internal revenue laws were of direct interest to few. It is true the act to regulate commerce was put on the books in 1887, but little power to make its provisions effective was conferred until 1906. Business men
knew of the Sherman law, but its provisions were not extensively invoked. The Elkins law making rebating a criminal offense was enacted in 1903. A Chicago man of wealth, whose income was thereby considerably reduced, complained on oath before the Interstate Commerce Commission that by that law he was deprived of his property and contract rights. However ridiculous this position may seem to have been under the circumstances, we see in this commendable legislation one of the earliest of a series of laws, the last of which are not so wholly free from constitutional infirmity. By no process of reasoning can we escape the conclusion that constituted authority is sweeping aside barriers hitherto deemed impregnable and is invading the domain of civil rights to an extent heretofore not experienced and not even deemed possible under the Constitution. From being little governed we have come to be perhaps the most governed people in the world. Much of our difficulty is due to the desire of the people for an equality for which they refuse to work, but which they hope to obtain either directly or indirectly by legislation. The Adamson law illustrates the point. Here it took both the enactment of a statute and its judicial approval contrary, as many eminent lawyers hold, to established precedent, to give railroad employees, through the medium of ten hours' pay for eight hours work, that portion of the wealth of the public which the employees desired. Back of every statute which presses hard against the constitutional guaranties will be found the voting and vocal strength of a mass of people, who, with no intention of adding to the total of wealth, seek to add to their own wealth by subtracting from the wealth of others. Encouraged by success in obtaining legislation responsive to our demands, and its judicial approval, we, as a people, have become possessed of a mania for enacting laws. We seem sincerely to believe not only that a remedy can be provided by statute for every evil, but that by law we can give ourselves health, wealth, and happiness. While we decry it we ourselves are responsible for too much government in business.
Federal statutes enacted during the past twenty years indicative of the popular tendency to establish statutory cure-alls and of the extent to which it has been carried include more than thirty enactments having to do with transportation, six anti-trust, ten agricultural, thirteen revenue, and several food and drug, banking, war-time, and miscellaneous laws, bringing the government into intimate contact with substantially every branch and department of business, whether involved in interstate commerce or not.
Contemporaneously with this development in our federal statutes the laws of the states have kept pace. The Kansas Industrial Court law, the Special Coal and Food Commission law of the State of Indiana, the rent laws of the State of New York—these and many other laws of like character furnish an index to the popular conception of the extent to which governmental regulation and control of business and of personal rights may go.
It is obvious that the vast majority of state laws of the class under consideration are enacted in or under the guise of the exercise of police power. The rent statutes of the District of Columbia enacted by Congress were also clearly an exercise of the power of police. Most of the federal statutes referred to find their authorization in the Commerce Clause of the federal Constitution, which, in granting to Congress the power to regulate interstate and foreign commerce, gives Congress, it is held, full police powers with regard to such regulation.
In their legislative aspect, laws of this character are often enacted because of the concerted demand of a few who seem to be many. They are vox populi laws, emergency laws, laws legislators dare not refuse to enact. Many of them have no good reason for existence, but however inexcusable meet all constitutional requirements. Others, though more economically justifiable, are less free from fundamental objection.
In their judicial aspect, these laws present the most difficult constitutional questions the courts are called upon to solve. Whether conformable to the Constitution or not, they result in cases raising close questions. They afford the courts an ever present opportunity to err, thus adding to the difficulties caused by ill advised legislation. In the final analysis, since courts possess the power to declare an act void, super-supreme law may also exist by virtue of judicial interpretation. From this viewpoint it may be called accidental law. The human element enters into the situation. It can no more be eliminated from judicial than from legislative action. The part played by it in the adjudication of cases is always important and all the more important when the questions are close. Two cases decided by the federal Supreme Court well illustrate accidental adjudication. In Pollock v. Farmers Loan and Trust Co. the Supreme Court, by vote of four to four (Justice Jackson not sitting), declined to hold invalid that portion of the Revenue Act of 1894 which laid a tax upon income from personal property. In
1. 157 U. S. 429.
effect constitutional approval was thereby given to this portion of the income tax law of 1894. Subsequently, but only forty-two days after this decision was rendered, on rehearing of the same case (Pollock v. Farmers Loan and Trust Co.)? Justice Jackson, who participated in the rehearing, joined with the justices who were of opinion that the law was constitutional. This would have been sufficient to sustain the validity of the Act by a five to four vote, but one of the justices, who on the first hearing had joined with those of opinion that the law was constitutional, had meanwhile changed his opinion and his vote, the effect of which was to hold the act of 1894 unconstitutional by a vote of five to four.
Another illustration of the manner in which a case may be decided by accident is the Steel Corporation case decided in 1920.3 The judgment and opinion of the court were rendered by a majority of four, against a minority of three, out of nine living justices, the views of the two non-participating justices being generally believed to be adverse to those of the minority majority. In many cases involving a close question of conflict between the exercise of the police power and constitutional guarantees, the decision of the Supreme Court has been made by a vote of five to four.
Police power existed until 1827 without either name or attempted definition.* Like the air we breathe, its presence was not easily discernible. Although Bouvier's Law Dictionary was first published in 1839, it did not attempt to define police power until 1883. Police power has not yet been clearly defined. It defies definition. When first discovered (if I may use that word) it was conceived to be the residuary sovereignty of the states after the grant of power to the federal government. In this way it was deemed to be an attribute of the states and not of the Union. And in this view it is still proper to say that the federal government is not possessed of police power. On the other hand, clearly the federal government possesses police power in governing the District of Columbia and other territory belonging to the United States. Also in the exercise of power not specifically granted, but incidental to the exercise of power granted in terms, the federal government exercises power identical in nature with the police power of the states. Distinguishing the source of the power or giving it an
2. 158 U. S. 601.
5. In Passenger Cases 7 How. 283, it is said "Police powers ... and sovereign powers are the same."
6. Lottery case 188 U. S. 321-353-357; Legal Tender case 110 U. S. 421 ; Downes v. Bidwell, 182 U. S. 244; Hoke v. U. S. 308 (White Slave