NOTES, 277 at lightning speed in a badly ventilated room, is likely to regard a bar examination as an unfair test. Where there is but one law school in question, there certainly seems to be no serious objection to accept- ing its degree as evidence of the student's knowledge of common law, at least, if not of the statutes and practice. Where, on the other hand, the privilege is bestowed on two or more law schools, objections may arise from the inequality of standard, the strivings of the several facul- ties to enlarge their roll of student-s, and the ineffectiveness of the distant supervision exercised by the Bar. Hov/ever, even under these circumstances, the question is worth discussing. Judicial Check on Unconstitutional Legislation. — The exercise by the courts of this country of the power to declare acts of a co-ordinate legislature void because of unconstitutionality has become so much of a commonplace, that the peculiar circumstances which led to the establish- ment of the power are likely to be forgotten : and one is apt to think of this power of the judiciary as inherent in the nature of our govern- ment, and as such, accepted from the outset without dispute. The able and serious opposition which met the claim of this power in some of the original States is too frequently overlooked. As late as 1825, Gibson, J., of the Pennsylvania Supreme Bench, in Eakin v. Raub (12 S. &R. 330), vigorously denied the existence of the right claimed by the courts to disregard a legislative act because of its conflict with provisions of the State Constitution. A re- examination of the source of this power is demanded, when one finds it laid down as a principle estab- lished beyond dispute, that under a written Constitution the right of the judiciary to declare legislative enactments void for unconstitution- ality is the necessary logic of jurisprudence. " This is, in effect, the statement made by Prof. J. W. Burrage in a recent number of the Political Science Quarterly (September, 1895, Vol. X. pp. 422, 423). That under the State and Federal Constitutions the American courts exercise this power rightfully, is settled beyond cavil. Yet it is not expressly granted in the Constitutions of the original States : nor is it clear, as Prof. Burrage would seem to assert, that it is expressly granted in the Federal Constitution. Nevertheless, one is not driven to defend the power as the " necessary logic of jurisprudence. " Its existence is to be traced rather to the relations of the English courts to our colo- nial legislatures prior to the Revolution, to the effect of those relations on the conception of the powers of State judiciaries, and less remotely to the intentions of the framers of our early constitutions, than to a logical deduction from the mere existence of a written constitution. ( See Thayer's Origin and Scope of the American Doctrine of Con-, stitutional Law, 7 Harvard Law^ Review, 129.) Gibson, J., in the c^.%q oi B akin w, Raub ^ above refeired to, points out that the powers of the judiciary fall into two classes, political and civil. The civil powers are the ordinary powers of the courts at common law, while the power by which any control or influence is exerted over other departments of government or their acts is a political power. At common law, the judiciary can possess no political power. Yet it is claimed that, by necessary implication, the existence of a written constitution confers upon the judiciary, in addition to its ordinary and
