ville is a part and parcel of the manhood of North Carolina, and after all the manhood and the womanhood of North Carolina, working hand in hand together, have long ago made the Old North State both famous and rare. Again, I thank you in behalf of the Bar Association for the cordial welcome which has been accorded to us, and I assure you that every lawyer in North Carolina is glad that your Asheville and your Land of the Sky is a part of our commonwealth, the Old North State. The President, upon the conclusion of Mr. Harding's response, delivered his annual address, as follows: THE POWER OF THE JUDICIARY OVER LEGISLATION. Address by J. CRAWFORD BIGGS, of Raleigh, President of the The most unique and at the same time the most important feature of American constitutional law is the power exercised by the courts to declare legislation null and void when in conflict with the written Constitution. This is an American doctrine and had its rise in the formation of the several State governments in 1776, with their written constitutions, as these were the first instances in history where the governmental powers were strictly defined in written instruments. The doctrine is a logical result in a government organized under a written Constitution, with its powers divided into three great divisions, each with express limitations, and is grounded upon the fact: First-That the written Constitution is the supreme law; Secondly-That the powers of the legislative department are limited by the Constitution, and Thirdly That the Judiciary is bound to recognize and uphold the supreme law. Ambassador Bryce in his "American Commonwealth" said that no feature in our government has received so much admiration in the European mind and that there is no part of the American system which reflects more credit on its authors or has worked better in practice. De Tocqueville declared this feature of our government "one of the strongest barriers ever devised against the tyrannies of political assemblies." Chancellor Kent considered the establishment of this principle to be one of the most interesting points in favor of constitutional liberty and of the securing of property in this country that had ever been judicially determined. THE DOCTRINE. "The principle in the English Government," said he, "that the Parliament is omnipotent, does not prevail in the United States. The law with us must conform, in the first place, to the Constitution of the United States, and then to the subordinate constitution of its particular State, and if it infringes the provisions of either, it is so far void. The courts of justice have a right, and are in duty bound, to bring every law to the test of the Constitution, and to regard the Constitution, first of the United States, and then of their own State as the paramount or supreme law, to which every inferior or derivative power and regulation must conform. The Constitution is the act of the people, speaking in their original character, and defining the permanent conditions of the social alliance; and there can be no doubt on the point with us, that every act of the legislative power, contrary to the true intent and meaning of the Constitution, is absolutely null and void. The judicial department is the proper power in the government to determine whether a statute be or be not constitutional. The interpretation or construction of the Constitution is as much a judicial act, and requires the exercise of the same legal discretion, as the interpretation or construction of a law. To contend that the courts of justice must obey the requisitions of an act of the Legislature when it appears to them to have been passed in violation of the Constitution, would be to * * * * * contend that the law was superior to the Constitution, and that the judges had no right to look into it, and regard it as a paramount law. It would be rendering the power of the agent greater than that of his principal. The attempt to impose restraints upon the exercise of the legislative power would be fruitless, if the constitutional provisions were left without any power in the government to guard and enforce them. * "It (the legislative power) is constantly acting upon all the great interests in society, and agitating its hopes and fears. It is liable to be constantly swayed by popular prejudice and passion, and it is difficult to keep it from pressing with injurious weight upon the constitutional rights and privileges of the other departments. An independent judiciary, venerable by its gravity, dignity, and its wisdom, and deliberating with entire serenity and moderation, is peculiarly fitted for the exalted duty of expounding the Constitution, and trying the validity of statutes by that standard. It is only by the exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the government, and every member of the community, from undue and destructive innovations upon their chartered rights."* "The text-writers and the decided cases," says Mr. Justice Allen, "agree that it is not only within the power, but that it is the duty of the courts in proper cases, to declare an act of the Legislature unconstitutional, and this obligation arises from the duty imposed upon the courts to declare what the law is. "When the constitutionality of an act of the General Assembly is questioned, the courts place the act by the side of the Constitution with the purpose and the desire to uphold it if it can be reasonably done, but, under the obligation, if there is an irreconcilable conflict, to sustain the will of the people expressed in the Constitution, and not the will of the legislators who are but the agents of the people."† *Kent's Commentaries, p. 485. Bickett vs. Knight, 85 S. E. Reporter, 418. Chief Justice Clark has said: "While the courts have the power, and it is their duty in proper cases, to declare an act of the Legislature unconstitutional, it is a well-recognized principle that the courts will not declare that this co-ordinate branch of the government has exceeded the powers vested in it unless it is plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people."* The Constitution contains certain restrictions and limitations upon the power of the Legislature, and any act which it undertakes to pass in direct conflict with the provisions of the Constitution is an unlawful exercise of its powers, and while the courts will resolve every reasonable doubt in favor of the lawful exercise of its power, yet when it is made to clearly appear in a properly constituted case wherein the validity of the statute is directly and necessarily drawn in question, that the Legislature has transcended its limitations, not only has the Court the power, but it is its duty to declare the statute void. The Constitution is the supreme law, ordained and established by the people themselves, and is the measure of the rights delegated by the people to their governmental agents. To take an illustration from our own State reports: One Tim Williams was tried on appeal from a magistrate for violating Rev. 3366, which made it a misdemeanor in certain counties if a cropper should procure advances from his landlord and wilfully abandon the crop before paying for such advances. The lower court quashed the proceeding on the ground that the statute contravened the Constitution, Art. I, Section 16: "There shall be no imprisonment for debt in this State, except in cases of fraud." The Supreme Court, speaking through the Chief Justice, said: "The offense here charged has no element of fraud, and as the statute imposes imprisonment, it cannot be sustained," and the judgment below was affirmed.t *Sutton vs. Phillips, 116 N. C. 504. It is difficult to believe that any one would contend that our Supreme Court was usurping power in protecting an humble citizen from imprisonment for debt, by according to him his constitutional rights, when this could be done in no other way than by the court declaring the act of the Legislature invalid, when the defendant was about to be imprisoned under its provisions. While this principle is firmly settled as a part of American jurisprudence, yet when it was first announced by American courts, it was vigorously combatted. Beginning with the letter of Richard Dobbs Speight, written to James Iredell on August 12th, 1787, from the Constitutional Convention at Philadelphia, criticising the decision of the North Carolina Court in Bayard vs. Singleton as a "usurpation of authority,' to the present day, there are those who claim that such power is usurped by the courts and that they have no right to nullify an act of the Legislature or of Congress, co-ordinate departments of the Government. On account of the great principle involved, and the importance of the question, and in view of recent criticisms of the doctrine and of the courts for exercising this power, I have thought on this occasion before this Association, composed of the Bench and Bar of North Carolina, who were the leaders in the establishment of this great constitutional principle, it would not be inappropriate to trace the history of its development, and to portray the part both in State and Nation which North Carolina took therein, with the purpose and hope that the unsoundness of the views of those who attack this principle may be demonstrated, and the dangers to the stability of our government may be realized, which, I conceive, are attendant upon the dissemination of their false theory, inconsistent and incompatible with the basic principle underlying our system of government. THE FIRST REPORTED CASE. New Jersey, Virginia, New York and Rhode Island claim for their courts the high distinction of having led the way for |