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High Courts of the World

and their Powers

NOTE

This table has been prepared, with the assistance of the ambassadors and ministers of the countries represented, to give a general concept of the way in which nations of the world deal with the question of constitutionality of legislative acts. No attempt has been made to give detailed comparsions by setting forth constitutional provisions, statutes, and judicial decisions pertaining to the subject. For that reason it must be noted that some of the answers are subject to various qualifications, but on the whole the table gives a general outline of the treatment of this subject as of 1937.

Table

Does court have
power comparable to 'Has court lim-
that of the Supreme ited power to
Court of the United pass upon the
States to pass upon constitutionality
the constitutionality of legislative
of legislative acts?

acts?

Country

Name of Highest Court

Albania
Gjyqi i Nalte ---

No

No
Argentina
Suprema Corte de Justicia..

Yes
Austria
Bundesgerichtshof..

No

Yes Belgium Cour de Cassation...

No

No Bolivia Corte Suprema de Justicia..

Yes
Brazil..

Côrte Suprema dos Estados Unidos do
Brasil...

Yes
Bulgaria -
Vurkhoven Kassatzionen Sud..

No

No Canada Supreme Court of Canada

No

Yes Chile.. La Corte Suprema de Justicia

No

Yes China. Tsuigau Fayuan..

No

No
Colombia
Corte Suprema de Justicia..

Yes
Costa Rica
Sala de Casación..

Yes
Cuba...
Tribunal Supremo.

Yes
Czechoslovakia.. Ústavní soud..

No

Yes Denmark.-Højesteret.--

No Dominican Republic - Suprema Corte de Justicia.

No

Yes Ecuador. Corte Suprema de Justicia.

No

No Egypt... Mixed Court of Appeals.

No

No "The principal limitations are these: Only parties designated in the constitution may institute actions to determine constitutionality; or only laws of a particular Dature, usually those involving individual rights, may be tested.

The Danish government has not taken a definite position on the question whether the "Højesteret" has a limited power to pass on the constitutionality of laws, but when questions of the constitutionality of laws have been presented to the courts by persons claiming that their individual rights have been violated by legislative acts, the government has, up till now, acquiesced in the decision by the courts of the said question.

2

Does court have
power comparable to Has court lim-
that of the Supreme ited power to
Court of the United pass upon the
States to pass upon constitutionality
the constitutionality of legislative
of legislative acts?

acts?

Country

Name of Highest Court

El Salvador...
Suprema Corte de Justicia...

No

Yes Estonia... Riigikohus...

No

Yes Finland. Korkein Oikeus.

No

No
France.
Cour de Cassation.

No

No
Great Britain..
House of Lords...

No

No
Greece.
Areios Pagos...

No

Yes Guatemala. Corte Suprema de Justicia...

No

Yes
Haiti..
Cour de Cassation..

Yes
Honduras..
Corte Supreme de Justicia..

No

Yes Hungary Magyar Kiralyi Kuria -

No

No
Irish Free State. Supreme Court of the Irish Free State... Yes
Japan..
Daishin-in..--

No

No
Latvia.
Latvijas Senāts.-

No

No
Liberia
Supreme Court of Liberia -

Yes
Lithuania..
Vyriausias Tribunolas.--

No

No
Mexico.
Suprema Corte de Justicia...

Yes
Netherlands.
Hooge Raad der Nederlanden. -

No

No
Nicaragua
Corte Suprema de Justicia..

Yes
Norway -
Norges Høiesterett -

No

Yes PanamaCorte Suprema de Justicia.

No

Yes
Paraguay
Superior Tribunal de Justicia.

Yes
Peru.
Corte Suprema de Justicia..

No

No
Poland..
Sad Najwyzszy---

No

No
Portugal
Supremo Tribunal de Justiça...

No

No
Romania
Inalta Curte de Casatie si Justitie.

Yes
Siam..
San Dika...

No

No
Sweden..
Konungens Högsta Domstol.

No

No
Switzerland.
Tribunal Federal Suisse..

No

Yes Turkey--Temyiz mahkemesi..

No

No Union of South Africa Supreme Court of the Union of South

Africa... Union of Soviet Sociallist Republics Verkhovny Sud...

No

Yes Uruguay. Alta Corte de Justicia--

No

Yes
Venezuela
Corte Federal y de Casación..

Yes
Yugoslavia..
Kasacioni sud...

No

No The Supreme Court of the Union of South Africa may, however, declare invalid any law which has not been passed by parliament in the manner prescribed by the constitution.

3 Yes

The Man Who Engrossed the

Constitution

BY

John C. FITZPATRICK

THE SUPREME COURT has answered quite a number of important questions that have been asked about the Constitution of the United States; but one that has been asked daily since the Constitution was placed on public view in the Library of Congress at Washington remains yet to be answered. It is: Who wrote the Constitution? Not who composed those sentences and paragraphs; but who was the penman who engrossed on those four huge sheets of parchment the principles of our government?

It may seem strange that this question has remained unanswered since the year 1787; but the convention that framed the Constitution sat behind closed doors, its members were pledged to secrecy as to its proceedings, and in the bitter political struggle over its adoption, the name of the penman became an unimportant detail. When the convention's work was finished, all its miscellaneous records, reports, resolves, memoranda of every kind were destroyed by order of the convention itself. Everything except the bare journal of the proceedings and a record of the yea and nay votes were burned by the secretary. Some of the deputies retained possession of a few unofficial papers, over which the convention had no control, and these were not destroyed, but came to light years later. The principal one of these was the notes of the debates made by James Madison; but the record that held the answer to the question "who engrossed the Constitution?” went up in the smoke of the fire kindled by Secretary William Jackson.

Who engrossed the Constitution is a perfectly legitimate question and a perfectly natural one, for the writing is beautifully regular and cleanly impressive. If the convention records had not been burned the answer would be easy; but with an intentionally created vacancy staring the investigator in the face, successful identification of a penman who lived one hundred and fifty years ago seemed well-nigh hopeless.

The search was undertaken in behalf of the United States Constitution Sesquicentennial Commission because of the steady persistence with which the question was asked by the hundreds of visitors at the shrine of the Constitution at the Library of Congress and because it seemed that this detail of constitutional history should be known.

The story of the search for, and the finding of, the unknown scribe will be a curious and interesting one to the average person, though the procedure followed is a familiar one to historians; for this procedure parallels, in a general way, some of those followed by sleuths of the law in running down fugitives or unearthing evidence in difficult

cases.

In beginning the search the first and natural move was to visit the "scene of the crime" and carefully examine the ground for possible clues. Obviously this did not mean a trip to Philadelphia, where the Constitutional Convention had been held one hundred and fifty years ago; but it did mean a careful scrutiny of all the available data connected with the convention. Just as the detective collects, and accepts or rejects, data as inherently valuable or worthless for his purpose, the mass of information already accumulated and available concerning the Constitution and the convention had to be sifted and weighed. Much previous research had trodden the ground of the Constitutional Convention over and over again for innumerable purposes; but never so far as was known, for the express purpose of identifying the penman of the document. And it is a curious fact, well known to all historians, that documents which have been examined and sifted many times over for different purposes and are looked upon as fully analyzed will yet yield an amazing amount of new information when approached from a different viewpoint.

In a search of this kind the historian has one great advantage over the detective, in that there is no need of haste; the quarry has long since departed this life and the surviving evidence may confidently be counted on to continue to survive, barring always accidental destruction. But the parallel nevertheless is close, for where the detective must work at top speed for fear the trail will grow cold, the historian is blocked by the dusty curtain of time from a trail that is never warm.

The "scene of the crime” in the present instance was the meager surviving records of the Constitutional Convention. Carefully every contemporaneous writing and all published matter officialiy connected with the convention was examined anew: the manuscript material first; then the printed records. The original journal of the proceedings in the writing of Major Jackson yielded nothing. Jackson himself was eliminated at once from consideration, as he did not have

SEARCH FOR THE PENMAN

763

the pen skill so evidently possessed by the engrosser of the Constitution. Along with Jackson were eliminated also all the deputies to the convention, not only for the same reason, but because it was obvious none of them would have undertaken so laborious and mechanical a task. James Madison, William Paterson, Alexander Hamilton, and others took notes of the debates as the convention progressed; but none of these notes yielded a clue. Gouverneur Morris, a deputy from Pennsylvania, was a member of the Committee of Style, which came into existence near the end of the sessions, and, because he was largely responsible for the literary form of the final text of the Constitution, the story gained credence, among the unthinking, that the parchment signed document was in his writing. Even the most cursory comparison of the penmanships demonstrated the impossibility of this being the fact.

The convention records having failed to furnish a clue, the next logical step was to examine the Papers of the Continental Congress, to which body the convention reported and which had, on September 20, 1787, agreed to meet the overhead expenses of the convention. Here it was hoped to find among the financial accounts of that Congress, an entry, or receipt, which would disclose the name of the penman of the Constitution. But the financial records of the Continental Congress are now, in many respects, as unsubstantial as was its paper money which, as is well known, gave rise to that contemptuous saying “not worth a Continental.” The papers of that Congress were grouped subjectively and bound up, many years ago, in such wise that the close detailed search demanded for identifying an unknown penman was little better than groping through a fog. Thrown together at the end of the large group of Treasury Papers are various volumes of financial statements, of unsettled accounts, estimates, memoranda, etc., etc., devoid of indexing and inconsistently arranged. Through these, volume by volume, page by page, and piece by piece the search plodded, until imbedded in a mass of financial memoranda the following was found: 1787, Sept. 21.

Dollars Stationery purchased for the use of the Foederal Convention, paid

therefor William Jackson esqr. late Secretary to the Foederal Convention

for his Salary during the sitting thereof agreeably to an Act of Congress of 20th Septembr. 1787 4 Months at 2600 dollars pr. annum is..

866.60 To William Jackson esqr. Secretary to the Foederal Convention

for allowance made by Act of Congress of 20th Septr. 1787---- 133.30 To door keeper 4 months at 400 dollars pr. annum.

133.30

36.

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