408 HASTINGS—POLICE POWER OF THE STATE. [June 19, 
seems almost a prohibition’on its exercise by the court. Nearly all 
of them provided that legislative, executive and judicial powers be 
kept distinct, and so late as 1825 the powerful dissenting ‘opinion 
of Justice Gibson in Eakin vs. Raub expresses his ‘‘ deliberate con- 
viction’’ that the intention of the state constitutions was not to 
give the judges any such functions and that it was intended that the 
people themselves in their frequent elections should be the guard- 
ians of their own constitutions against both executive and legisla- 
ture. To be sure, in so doing he sanctions Paley’s conception that 
the judiciary is a branch of the executive as against Montesquieu’s 
idea of the necessity of its complete independence. 
The doctrine of Judge Gibson probably rests on the basis of 
facts. It is difficult to read the constitutions of those early years 
without concluding that such a power in courts was not contem- 
plated by their framers, and that it grew up as an after-thought and 
a necessity. The people were accustomed to having all laws inter- 
preted by the courts. They saw no reason why the supreme law 
should not be so interpreted, when interpretation was needed. 
Without much regard to their own declarations that the complete 
separation of legislative, executive and judiciary were essential to 
free government, they had ratified the action of their courts in as- 
suming such jurisdiction even before the federal constitution was 
formed. 
When that constitution was made to embrace the provision that 
it and all laws and treaties made in pursuance of it should be the 
supreme law of the land, and that the judicial power of its courts 
should extend to all cases arising under it, they understood that 
they were submitting to the Federal Supreme Court the validity and 
conformity to the federal constitution of legislation of the states. 
Judge Gibson admits this, though his argument would seem to pre- 
vent such a holding as to an act of Congress. The famous case 
of ?Marbury vs. Madison had held, however, that Congress could 
not pass an unconstitutional act and make it binding on the Su- 
preme Court. Chief Justice Marshall’s reasoning is equally appli- 
cable to the case of a state Supreme Court dealing with an act of 
its legislature. It is a perfect example of his mingling of dialectics 
and common sense and has never been shaken. Even Judge Gib- 
son, twenty years after Eakin vs. Raub, declared he had changed 
his mind ‘‘ from the necessity of the case.’’ 
172 3S. (GK, 330. 2 1 Cranch, 137 (1803). 
