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peculiar to themselves, and elected a Justiza, or Supreme Judge; that he was the protector of the people and controller of the prince; his person was deemed sacred and his power and jurisdiction almost unbounded. "He was the supreme interpreter of the laws. Not only inferior judges, but the kings themselves were bound to consult him in every doubtful case, and to receive his responses with implicit deference." On his own motion he exercised the power in behalf of personal freedom and against arbitrary power akin to that permitted to every citizen under the writ of habeas corpus. He had a right to review all the royal proclamations and patents, and to declare whether or not they were agreeable to law and ought to be carried into execution. He, by his sole authority, could exclude any of the King's ministers from the conduct of affairs and call them to answer for their maladministration. And Prescott tells us that the people, having become familiarized with the benignant operations of the law under this scheme, referred to peaceful arbitration those great political questions which, in other countries at this period were settled by sanguinary revolutions. The independence of his office was secured by a life tenure; and nothing in the history of Spain is referred to with as much pride and in terms of such high commendation as the masterful power of the Justicia in the arbitration of great questions between the King and Parliament and the Parliament and the people. (See I Prescott's Ferdinand and Isabella, pp. 87-88, 99-102.) Under this Constitution the kings, who were long elective, retained only the shadow of power, while the real exercise of authority was in the hands of a representative legislative assembly. The independence of these people at this juncture is attested by the coronation ceremony of the King. When the latter had taken the official oath, the people, through proper representatives, declared their allegiance to him in this form: "We, who have as much power as you, make you our sovereign lord, upon the condition that you keep inviolably our laws and rights, and not otherwise." (See Puffendorf, Law of Nature

and Nations, Book 7, ch. 6.) Did the framers of the Constitution know of this interesting officer who thus administered justice in the kingdom of Aragon? Certainly some were cognizant of this institution. The history of Charles V, by Dr. Robertson, appeared in 1769, and was one of the most popular histories among the Englishspeaking people; and, in the debates of the Federal Convention, John Dickinson, of Delaware, in opposing the doctrine that the judges should be expositors of the Constitution, with authority to declare a law void, cited the Justicia of Aragon, who, he observed, became by degrees the lawgiver of the kingdom. (5 Elliott's Debates, 429.)

Conflict Between Laws of the Church and Laws of the State.Broadly speaking, it may be said that whenever in the history of a State there comes a juncture where there is a division of powers competing for authority, disputes must be decided either by force, or peaceably by arbitration. The limits of this paper will preclude anything like a critical examination of the judicial aspects of the partition of power between church and the state, or into spiritual and temporal powers, which gave rise, during the middle ages and down to the revolution of 1688 in England, to many interesting questions of tremendous import. Suffice it to say that on the continent of Europe and in Great Britain disputes between these conflicting powers found their way into the courts and into the commentaries of learned men; and it seems to have been accepted by the canon law as a maxim for many centuries that temporal statutes contrary to ecclesiastical rights and liberty were invalid; and in the courts of Europe and in the common law courts of England this doctrine found more or less of judicial recognition, thus placing the judicial tribunals, in the history of the church and in the minds of students, in an attitude where, in governmental and ecclesiastical matters, they were regarded as arbiters.

Mr. Coxe has devoted much space to the consideration of the his

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torical aspects of this matter, and reaches the conclusion that the idea of judicial competency of deciding questioned statutes to be contrary to binding right, and holding the same, therefore, null and void, can be traced at least as far back as the canon law. (See Coxe, Judicial Power, pp. 121 to 164.) He points out that before the Reformation a real partition of power between church and state and a real division into temporal and spiritual powers existed, that it was declared in the very first article of the Magna Charta that "the English church shall be free;" that Parliament could not then destroy the rights and liberty of the church in two classes of matters: first, in purely spiritual matters, and the second included some, but not all, spiritual matters that were mixed with temporal affairs; that if the Parliament made a statute so extending, it was ipso facto void; and such temporal legislation in such ecclesiastical matters did not bind either the subjects or officials or the judges of the King. (See Coxe on the Judicial Power, pp. 121 to 179.)

The Influence of the Social Compact Doctrine.-No one doctrine of the science of politics has done so much in preparing a way for our peculiar constitutional theory as that of the social compact, particularly as set forth by that school of English scholars of which John Locke may be considered the head. It has furnished the reasons, and co-operated with all the circumstances which have helped to make the conditions which were necessary to the prevalence of such a constitutional theory. It has helped to propagate the idea that sovereignty is in the people, and that Legislatures exercise a representative delegated power; it has fostered the idea of natural rights and the equality of all men before the law; it involves the assumption of a higher law to which mere legislative acts must yield, and it points the way in the spirit of legalism to the policy of creating some tribunal with power to guard and protect the fundamental rights of the people, the protection of which, under just laws, constitutes the chief end of the State. The transition

from a solemn original social compact between the people, by which the State originates, and between the people and their rulers, to a solemn, written, organic Constitution, is an easy matter. It may be that the social compact is a fiction; it may be that out of this egg plausible ingenuity may have hatched revolutions abroad and nullification and secession on this continent. It is true that upon this doctrine Hobbs founded the absolute power of the monarch; Filmer built up his hypothesis of the divine rights of kings; nevertheless, in its practical workings, it has been essentially the servant of political liberty and has made effective war against arbitrary power. From the days of George Buchanan, Hooker, Hobbs, Milton and Sidney, down to a day subsequent to the framing of our Federal Constitution, the social compact was the prevalent creed of philosophical and legal writers, and in time came to be almost universally accepted by the masses of the people in Great Britain and in America. If we were to estimate the soundness of the doctrine by the number and character of its adherents, this would take precedence over all others. It has even been asserted that "it is the natural theory of the Germanic races." (See I Hammond's Bl. Comm., 144, et seq.) However much it may have been ridiculed, however unsound historically it may be, we at least must accord it respect, as it was the cardinal belief of the men who wrote the Declaration of Independence and framed the State Constitutions and that of the Nation. It has actually been doubted whether the statesmen of the American Revolution would have ventured to formulate the Constitutions they did if they had been imbued with that theory of scientific jurisprudence of the nineteenth century taught by the historical school.

As taught by Locke, this doctrine supposes a social compact between the people, and a compact between the people and the prince, as the source of government; men being by nature free and equal, no one can be subjected to the political power of another without

his consent; the only way whereby one can divest himself of any of his natural liberty and put himself in the bonds of civil society is by compact or agreement, each with each and each with all. Thus society is formed by each surrendering a part of his natural rights for the good of all, that he may thus live in the secure enjoyment of his property and liberties. A monarch, therefore, who, in disregard of the purposes for which the compact was made or the ends for which the government was instituted, proceeds arbitrarily to take away the property of the people, or to reduce them to slavery, is guilty of a violation of the compact, and places himself at war with the citizen.

This doctrine was the cornerstone of the declaration made by the Convention Parliament that consummated the revolution of 1688. It was declared-in this memorable convention that "King James II, having endeavored to subvert the Constitution of the kingdom, breaking the original contract between the King and the people, and having by the advice of the Jesuits and other wicked persons violated the fundamental laws and withdrawn himself out of the kingdom, has abdicated the government, and the throne is thereby vacant." Again we see it in the memorable Mayflower compact; in the great proclamation to the world known as the Declaration of Independence; it is seen at every turn. The charters granted by NOTE. See Buchanan's De Jure Regni, printed in 1759, of which the Earl of Chatham (Correspondence, Vol. 4, 286) has said that it was a volume small in bulk, but big in matter, containing "even all the length and breadth and height of that great argument which the first geniuses and master spirits of the human race have asserted so nobly. From him, as from a perennial fountain, they have all drunk, and happiest who has drunk the deepest." 2 Milton's Prose Works (Bohn's ed., p. 8); Puffendorf's Law of Nature and Nations, Book 7, Ch. 2, Sec. 5; Locke on Government, Ch. 7, Sec. 10; Sidney on Government, 3, 25, 33; 2 Rutherford's Institutes, B. 2, Chs. 1, 2; Maine's Ancient Law, 77, 85; Judge James Wilson's Lectures, delivered in 1790-1791 to the Law School in the College of Philadelphia, Vol. 1, original edition, 185 et seq.; I Bl. Comm. 233.