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 The Supreme court of the United States:i 
 
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Johns Hopkins University Studies 
 
 IN 
 
 HISTORICAL AND POLITICAL SCIENCE 
 
 HERBERT B. ADAMS, Editor 
 
 History is past Polities and Politics present History— Freeman 
 
 EXTEA VOLUME 
 VII 
 
THE 
 
 SUPREME COURT 
 
 UNITED STATES 
 
 Its History and Influence in our 
 Constitutional System 
 
 BY 
 
 ,^^\ 
 
 WESTEL wfwiLLOUGHBY 
 
 Fellow in History, Johns Hopkins University 
 
 baltimore 
 The Johns Hopkins Pbess 
 
 1890 
 
Copyright, 1890, by The Johns Hopkins Press. 
 
 JOHN MORPHY <* CO., PRINTERS, 
 
 BALTIMORE. 
 
TABLE OF CONTENTS. 
 
 CHAP. PAGE. 
 
 I. — Judiciaries in the Colonies and under the Confed- 
 eration, ... 1 
 II. — The Judiciary in the Convention, - 7 
 III. — The Judiciary in the State Conventions, 18 
 IV. — Establishment and Jurisdiction or the Federal 
 
 Courts, - 22 
 
 >V. — The Supreme Court and Congress, - - 27 
 .VI. — The Supreme Court and the State Legislatures 
 
 and Judiciaries, - - 43 
 
 •VII. — The Supreme Court and the Executive, 69 _ 
 
 VIII. — The Supreme Court in Politics, - 83 
 
 IX. — Present Condition and Needs op the Supreme Court, 105 
 
 X. — Conclusion, - 111 
 
 Appendix. 
 
 A. — Key to Reports, 117 
 
 B. — Table of Cases, 119 
 
 Index, - - - 121 
 
THE SUPREME COURT OF THE 
 UNITED STATES. 
 
 CHAPTER I. 
 
 Judiciaries in the Colonies and Under the 
 Confederation. 
 
 The research of recent historians has served to set in proper 
 light the origin of our political institutions, and the character 
 of their antecedents. In America, as elsewhere, has been 
 shown the truth of the maxim that institutions are the result 
 of an evolution, and not of an invention ; and that constitu- 
 tions, whether written or unwritten, are but the results of the 
 gradual recognition of those laws and methods which are the 
 best suited for the government of a politically organized people. 
 Nevertheless, the impression seems still to have obtained, to 
 some extent at least, that our Supreme Court was, in its estab- 
 lishment, a partial exception to this political truth, and that 
 it owes its origin very largely to the inventive genius of the 
 members of the constitutional convention. We find Sir 
 Henry Maine speaking of the Supreme Court as " a virtually 
 unique creation of the founders of the Constitution," and 
 Hannis Taylor, in his recent work, characterizing it as " the 
 most original work accomplished by the framers of the Con- 
 stitution," and in another place saying : " The Supreme Court 
 has no prototype in history." To what extent are these views 
 
 1 
 
2 The Supreme Court of the United States. 
 
 correct? In what respects is our supreme judicial tribunal 
 the result of an historical development, and in what respects 
 is it the product of the creative genius of the members of the 
 federal convention ? 
 
 England's colonists in America brought with them her 
 system of common law, and, together with British-born sub- 
 jects, claimed all the rights and privileges enjoyed at home. 
 The colonies, though settled at various times, under widely 
 different circumstances, and by men differing in religion, 
 instincts, and manners of thinking and living, all owed a 
 common and like allegiance to England. They enjoyed, as 
 we know, local self-government, guaranteed them by charters 
 and grants of power. The laws of their representative legis- 
 latures were required to be not repugnant to, but, so far as 
 possible, in conformity with the statutes of England. The 
 legislative power was, however, limited by the charter or royal 
 grant of power,, under which the colonial government was 
 established. The field of colonial legislation, thus marked 
 out, could not be departed from without the liability of annul- 
 ment. That this limitation received a very liberal interpreta- 
 tion, we know, but that the principle always existed as a well 
 recognized fact, cannot be contested. That this form of control 
 should naturally exist is seen when we consider the nature of 
 the companies first settling the colonies. They were specu- 
 lative commercial organizations, and their instruments of 
 government were commercial charters. In all times a govern- 
 mental control over corporations has of necessity been retained 
 in order to guard against abuse of their corporate privileges. 
 The charter of London, for example, was several times taken 
 away by the Plantagenets for various reasons, real or pretended. 
 As an example of the exercise of this royal authority as 
 applied to the American colonies may be cited the case of 
 Winthrop v. Lechemere in Connecticut, where, upon appeal to 
 England, a colonial statute was declared void as contrary to 
 the charter and English law. Practically speaking, however, 
 it seems to have been left to the judiciaries of the colonies to 
 
The Supreme Court of the United States. 3 
 
 decide what parts of common law applied to the colonies, and 
 as actually administered in the different colonies, there was in 
 no two of them an identity of interpretation. 1 
 
 During the colonial period of our history the judiciaries 
 consisted of courts erected, and judges appointed by the crowu, 
 or by its representatives, the governors ; 2 but, once appointed, 
 the judges were independent, as they held office during good 
 behavior. The change of their tenure of office to the king's 
 pleasure was one of the offensive acts of England in the period 
 just preceding the Revolutionary War. This measure was 
 of course remonstrated against by the colonies. Chief Justice 
 Pratt, of New York, received his commission to continue only 
 " at the king's pleasure." Upon appeal to the Board of 
 Trade, the reply was given : " Your good behavior is a per- 
 nicious proposition." New York thereupon refused to grant 
 any salary to the chief justice ; but the board was able to pro- 
 vide such salary by a grant to be paid out of the royal quit- 
 rents of the province. 8 
 
 In almost all cases appeals lay from colonial courts to the 
 Assemblies, 4 and from thence to the King in Council. In 
 the majority of the charters, this right of appeal from the 
 highest colonial tribunal to the crown, was secured by express 
 reservation. Notwithstanding, however, the clearness with 
 which this appellate jurisdiction was asserted, it was at first 
 denied by several of the colonies, notably Massachusetts, 
 Rhode Island, and Connecticut, and was considered an in- 
 fringement upon their rights. Later, the exercise of this 
 appeal became assured, and at the . time of the American 
 Revolution was in full force, and was then considered as a 
 protection rather than as a grievance. 6 
 
 Blackstone, I, 384, 231 . 
 
 Except in Conn., where the judges were appointed by the legislature. 
 3 1761-2. 
 
 4 For this reason the Assembly was called in several colonies the General 
 Court. 
 
 5 Story, I, p. 163. 
 
4 The Supreme Court of the United States. 
 
 With the severance of political connection of the colonies 
 with England, the judicial, with the other powers of govern- 
 ment, were thrown into the hands of the several colonies, but the 
 only change in the administration of the judicial functions arising 
 from this circumstance, was that the highest court of each state 
 became the court of final resort, instead of the Privy Council. 
 
 The Declaration of Independence left the colonies politi- 
 cally and govern mentally separate states. During almost the 
 entire course of the war there existed no constitutional * federal 
 government. 
 
 By the Articles of Confederation finally adopted in 1781, 
 the colonies erected for themselves a federal governing body, 
 a Congress of States, to which was given not only legislative 
 and executive powers, but also judicial functions of a certain 
 order, namely, to decide " all disputes and differences now 
 subsisting or that hereafter may arise between two or more 
 States concerning boundary, jurisdiction, or any cause what- 
 ever." This authority was, however, always to be exercised 
 by the selection of commissioners or judges from each of the 
 States. The Articles of Confederation proving a failure, a better 
 and more perfect union was obtained in 1787, when was framed 
 the instrument which forms our present fundamental law. 
 
 The constitutional convention, which met in May, 1787, 
 was composed of the best men of the country ; with scarcely 
 an exception able, keen, farsighted statesmen. They had been 
 schooled in the arts of politics and government in the discus- 
 sions preceding, attending, and following the Revolution. 
 They had had the experience of executive tyranny under 
 England ; of individual self-government under the States ; 
 and of weak, inefficient federal government under the Arti- 
 cles. In addition to this, the writings and speeches of the 
 leaders there, show them to have been careful students of 
 ancient history, and of the then existing forms of government 
 
 1 The second Continental Congress was essentially a revolutionary body, 
 acting without any properly delegated powers. Vide Curtis' Const. Hist. 
 
The Supreme Court of the United States. 5 
 
 in Europe. 1 Among "Washington's papers, for instance, is 
 found an abstract of the general principles of ancient and 
 modern confederacies, the Lycian, Amphictyonic, Achaean, 
 Helvetic, Belgic, and Germanic Confederations. 2 From such 
 a body of men would naturally be expected an adequate yet 
 conservative instrument of government ; one that would be 
 " preservative rather than creative." 
 
 It is the purpose of the next few pages to show the extent to 
 which the judiciary then established was the recognition of 
 already existing courts and powers of adjudication, rather than 
 the creation of a new tribunal with novel powers. 
 
 Professor J. F. Jameson has rendered the service of empha- 
 sizing the fact that in addition to the federal judicial functions 
 exercised by the old congress, there existed a federal tribunal 
 styled the " Court of Appeals." From his valuable paper the 
 facts concerning this court are largely taken. 8 The outbreak 
 of hostilities with England occasioned a great increase in pri- 
 vateering, which, in turn, gave rise to many prize cases of 
 dispute. The old vice-admiralty courts having been destroyed, 
 the Revolutionary Congress alone remained able to decide 
 these cases. In Congress, these disputes were decided at first 
 by means of special committees appointed for each case. This 
 method was later improved upon, by the creation of a stand- 
 ing committee. Washington was the first to ask for the 
 establishment of a court, separate from the legislature, to 
 which appeals in prize cases could go for adjudication. Con- 
 gress, as usual, delayed action, and it was not until five years 
 after Washington's first suggestion, and only after repeated 
 petitions, that an act was obtained in 1779, by which a court 
 of three judges, styled "The Court of Appeal in Cases of 
 Capture" was created. The court was directed to proceed in 
 
 1 Federalist, No. 20, 14 and 19. 
 
 2 Works of, IX, p. 521. Cf. Madison's Writings. 
 
 3 Papers of American Historical Association for 1889. See also the pam- 
 phlet by J. C. Bancroft Davis, on "The Committee of the Continental Con- 
 gress, chosen to Hear and Determine Appeals from Courts of Admiralty, 
 and the Court of Appeals in Cases of Capture." 
 
6 The Supreme Court of the United States. 
 
 accordance with the usage of nations, and not by trial by jury, 
 and it was provided that the States should execute its decrees. 
 At the end of the war, cases requiring its jurisdiction became 
 less and less numerous, until in 1784, the judges were able to 
 report to Congress that there was no business to be transacted. 
 Its final adjournment was in 1787. One hundred and eighteen 
 cases in all were decided by Congress and by this Court. 
 
 The exact relation of this federal court to our present 
 supreme tribunal, cannot be exactly drawn. Says Professor 
 Jameson : " It could hardly be that one hundred and eighteen 
 cases, though all in one restricted branch of judicature, should 
 be brought by appeal from state courts to a federal tribunal 
 without familiarizing the public mind with the complete idea 
 of a superior judicature in federal matters, exercised by federal 
 courts. The ' Court of Appeals in Cases of Capture ' may 
 therefore be justly regarded, not simply as the predecessor, but 
 as one of the origins of the Supreme Court of the United 
 States." That the influence of this court in educating the 
 people to the idea of our present federal court with its additional 
 powers and widened field of jurisdiction, must have been great, 
 is indisputable ; but that this court was not simply the prede- 
 cessor, but one of the origins of the Supreme Court, in the 
 sense that from it the latter court was evolved is open to 
 question. A little thought shows these courts to have been of 
 such extremely different character, that to say that one was 
 the origin, or even one of the origins of the other, is too strong. 
 The old Federal Court of Appeals in Cases of Capture was 
 purely a creation of the Congress. It had the interpretation 
 of no federal laws, but of the laws of nations. It had no 
 powers of interpretation of the acts of either the federal or 
 state legislatures. Our Supreme Court was the creation of a 
 written constitution, and its authorized interpreter; and coor- 
 dinate in power with the legislative and executive branches of 
 government. In the debates attending the creation of our 
 present federal courts, the old Federal Court of Appeals, was 
 not, so far as I am aware, once referred to. The only resem- 
 blance between the two courts was in their federal nature. 
 
CHAPTER II. 
 
 The Judiciary in the Convention. 
 
 In forming the constitution, the framers of our government 
 were controlled by the principle that the powers which belong 
 to all governments can most safely and satisfactorily be exer- 
 cised by dividing them, according to their nature, among three 
 separate branches — the executive, the legislative and the judi- 
 cial. Under the Articles of Confederation this maxim had 
 been disregarded. The old confederate congress, had had, 
 under that plan, not only legislative powers, but also those 
 executive and judicial powers which the States had allowed the 
 central government. " The lack of a separate judiciary had 
 been one of the vital defects of the Confederation." 1 
 
 Before we consider the treatment that the judiciary received 
 in the constituent assembly, it will be well to particularize 
 some of the circumstances which demanded the erection of a 
 supreme tribunal, and thus to gain an adequate idea of the 
 work a Supreme Court was intended to do, and has done, and 
 what are the benefits that have followed from its creation. 
 
 A supreme judiciary was necessary ; first, that there might 
 be some power which could give an interpretation to the 
 national laws and treaties that would be uniform throughout 
 the land, and which would, as far as possible, be removed from 
 all danger of political bias and local prejudices. The homo- 
 geneity of all law that is supreme is necessary for the exist- 
 ence of a nation. A sovereign act must be valid every- 
 
 1 Story. 
 
8 The Supreme Court of the United States. 
 
 where. The establishment of an interpreter follows as a 
 corollary upon the adoption of a written constitution. This 
 was especially true under the new constitution, for the reason 
 that the government provided for under that instrument was to 
 operate, not upon the States, as had been the case under the 
 Articles of Confederation and which had been the inherent 
 defect of that government, but was to act upon individuals. 
 
 A second function, for the performance of which a Supreme 
 Court was needed, was the limitation of the federal power to 
 its legitimate field of operation. This function as a check upon 
 the legislature, undoubtedly the most important and interest- 
 ing power possessed by the court, will receive special consider- 
 ation under the head, " The Supreme Court and Congress." 
 t A third reason, demanding the establishment of a supreme 
 judiciary, arose from the very nature of our government, being 
 a government of government, and in which, consequently, 
 there were to be different grades of laws, between which fre- 
 quent and unavoidable conflicts would inevitably arise. 
 
 The undue expansion of federal powers moreover is not the 
 only danger to be met with in a federal republic ; the aggress- 
 iveness of state legislatures must also be opposed, and for this 
 purpose an impartial tribunal was needed to determine the 
 constitutionality of any act of a state legislature, whenever 
 the question should be raised. " It goes almost without say- 
 ing that restrictions upon the authority of state legislatures, 
 without some constitutional mode of enforcing an observance 
 of them would be of no avail. The power had to be either a 
 direct negative on the state laws by the federal government, or 
 an authority in the federal courts to annul such as were in 
 manifest contravention to the constitution." 1 The courts were 
 to be the " bulwarks of a limited constitution against legisla- 
 tive encroachments." 
 
 Still another function to be exercised by a Supreme Court, 
 and one so obviously necessary as to need no comment, was the 
 
 1 Federalist, 78. 
 
The Supreme Court of the United States. 9 
 
 settlement of disputes arising between citizens of different 
 States; between States and citizens of different States, and 
 between the States themselves. Such a court was needed also, 
 that there might be a proper tribunal to which foreigners 
 might resort. This tribunal was needed, not only for the 
 interpretation of federal statutes, but the construction and 
 application of treaties. The central government, under the 
 Articles of Confederation, had found it useless to depend upon 
 state courts and executives for the enforcement of treaty stip- 
 ulations. The United States was at that time suffering severely, 
 as we know, from the lack of some power to correctly inter- 
 pret treaties, and designate infractions of them. Largely from 
 this fact was due the unsatisfactory condition of the United 
 States' treaty relations, at that time. 
 
 In view of these reasons for the establishment of a powerful 
 national judiciary, and in the light of these inconveniences suf- 
 fered by the federal government from the lack of such an 
 institution, let us see what was the treatment received by the 
 judiciary in the constitutional convention ; and to what an 
 extent the members were agreed as to what its proper powers 
 should be. 
 
 The convention met May 14, 1787. On May 29, Ean- 
 dolph, of Virginia, presented his fifteen propositions embody- 
 ing that plan of federal government which has since been 
 called the Large State or National Plan. The ninth proposi- 
 tion read : 
 
 "Resolved: That a national judiciary be established — to 
 hold their offices during good behavior, and to receive punctu- 
 ally at stated times a fixed compensation for their services, in 
 which no increase or diminution shall be made so as to effect 
 the persons actually in office at the time of such increase or 
 diminution. That the jurisdiction of the inferior shall be to 
 hear and determine in the first instance, and of the supreme 
 tribunal to hear and determine in the dernier ressort all piracies 
 and felonies on the high seas ; captures from an enemy ; cases 
 in which foreigners or citizens of other states, applying to such 
 
10 The Supreme Court of the United States. 
 
 jurisdictions may be interested, or which respect to the collec- 
 tion of the national revenue ; impeachments of any national 
 officer; and questions which involve the national peace or 
 harmony." 
 
 In Charles Pinckney's draft of a federal government, pre- 
 sented the same day as that of Randolph, a federal judiciary 
 was provided as follows : 
 
 " The Legislature of the United States shall have the 
 power and it shall be their duty, to establish such courts of 
 law, equity and admiralty as shall be necessary. The judges 
 of the courts shall hold their offices during good behavior, and 
 receive a compensation which shall not be increased or dimin- 
 ished during their continuance in office. One of these courts 
 shall be termed the Supreme Court, whose jurisdiction shall 
 extend to all cases arising under the Laws of the United 
 States or affecting ambassadors, other public ministers and 
 consuls, to the trial of impeachments of officers of the United 
 States, to all cases of admiralty and maritime jurisdiction. In 
 (^ses_afifecting_ jtmbassjidors^ and other_ j^blic__ministers, this 
 jurisdiction shall be original, and in all other cases appellate." 
 
 On May 30, the convention resolved itself into a committee 
 of the whole house for the consideration of Randolph's plan. 
 
 On June 15, Paterson, on behalf of the State of New Jersey, 
 submitted eleven propositions embodying the plan of govern- 
 ment desired by the smaller States. The judiciary clause of 
 this scheme was very similar to that of Randolph, the prin- 
 cipal differences being that the judges should be appointed by 
 the executive, and that none of the judicial officers should, 
 during their term of office, hold any other office or appoint- 
 ment. The field of jurisdiction was thus defined : 
 
 " That the judiciary thus established shall have authority 
 to hear and determine in the first instance, on all impeach- 
 ments of federal officers ; and by way of appeal, in the dernier 
 ressort, in all cases touching the rights and privileges of ambas- 
 sadors ; in all cases of capture from an enemy ; in all cases of 
 piracies and felonies on the high seas ; in all cases in wliich 
 
The Supreme Court of the United States. 11 
 
 foreigners may be interested ; in the construction of any treaty 
 or treaties, or which may arise in any act or ordinance of Con- 
 gress for the regulation of trade or the collection of federal 
 revenue." 
 
 By the plan presented by Hamilton, June 18, a judiciary 
 was thus provided for. 
 
 " The supreme judiciary of the United States is to be vested 
 in — judges, to hold office during good behavior, with adequate 
 and permanent salaries. This court to have original jurisdic- 
 tion in all cases of capture, and an appellate jurisdiction in 
 all cases in which the revenues of the general government, or 
 the citizens of foreign nations are concerned." 
 
 A comparison of these four judiciary clauses, prepared by 
 men holding in other respects widely divergent political 
 beliefs, shows that, upon this subject at least, there was 
 considerable unanimity of opinion. The main points which 
 remained to be settled were : first, as to the method of 
 appointment of the judges; second, the power of the judiciary 
 over legislative acts of a State ; and third, the proper power 
 of the national judiciary over acts of the national legislature. 
 There were, of course, also minor points of jurisdiction to be 
 settled, but the debates concerning them are comparatively 
 uninteresting. 1 
 
 The question where should lie the power of negativing leg- 
 islative acts came up for debate on July 17, upon the motion 
 made to give to the national legislature the power " to negative 
 all laws passed by the several States contravening iu the opin- 
 ion of the national legislature the articles of union or any 
 treaty subsisting under the authority of the Union." Gover- 
 
 1 The power of the judiciary, as regards the impeachment of national 
 officers, was stricken out July 18. The appointment of the judges, as 
 reported by the Committee of Detail, was given into the hands of the 
 second branch of the legislature. This was changed at a later day, so as 
 to give to the President this power, limited of course by the consent of the 
 Senate. 
 
12 The Supreme Court of the United Stales. 
 
 neur Morris opposed the granting of this power as likely to be 
 " terrible " to the States. Luther Martin considered the power 
 as improper and inadmissible. "Shall all the laws of the 
 States be sent up to the general legislature," he said, " before 
 they shall be permitted to operate ? " Madison considered the 
 negative on the laws of the States as essential to the efficacy 
 and security of the general government. He said : " The 
 necessity of a general government proceeds from the propen- 
 sity of the States to pursue their particular interests in opposi- 
 tion to the general interest. This propensity will continue to 
 disturb the system unless effectually controlled. Nothing 
 short of a negative on their laws will control it. They will 
 pass laws which will accomplish their injurious objects before 
 they can be repealed by the general legislature, or set aside by 
 national tribunals. Confidence cannot be put in the state 
 tribunals as guardians of the national authority and interest. 
 In all states these are more or less dependent on the legisla- 
 tures. In Georgia they are appointed annually by the legis- 
 lature. In Rhode Island the judges who refused to execute 
 an unconstitutional law were displaced and others substituted 
 by the legislature who would be the willing instruments of the 
 wicked and arbitrary plans of their masters. 1 A power of 
 negativing the improper laws of the States is at once the most 
 mild and certain means of preserving the harmony of the sys- 
 tem. Its utility is sufficiently displayed in the British system. 
 Nothing could maintain the harmony and subordination of the 
 various parts of the empire but the prerogative by which the 
 crown stifles in the birth every act of every part tending to 
 discord or encroachment. It is true that the prerogative is 
 sometimes misapplied through ignorance or partiality to one 
 particular part of the empire, but we have not the same reason 
 to fear such misapplication in our system. As to sending all 
 laws up to the national legislature, that might be rendered 
 
 1 Tremtt v. Weeden, 1786. 
 
The Supreme Court of the United States. 13 
 
 unnecessary by some emanation of the power into the States, 
 so far at least as to give a temporary effect to laws of imme- 
 diate necessity." 
 
 Unpersuaded by these arguments, Morris saw the inconve- 
 nience and crudity of this method of revision of the state 
 laws, as compared with revision by the national judiciary, and 
 it is surprising that Madison did not himself see at this time 
 the faults of the plan. Said Morris, "a law that ought to be 
 negatived will be set aside in the judiciary department, and if 
 that should fail, may be repealed by a national law." 
 
 Sherman also pointed out the defect that the vesting of such 
 a power with the national legislature involved a wrong prin- 
 ciple, namely, that a law of a State contrary to the articles of 
 union would, if not negatived, be valid and operative. 
 
 The motion was lost. The result was, as Morris indicated, 
 to leave the power of negativing such laws as were uncon- 
 stitutional with the judiciary. 
 
 On June 4, Randolph's eighth proposition, that the national 
 executive and a convenient number of the national judiciary, 
 should compose a council of revision, for the examination of 
 acts of the national legislature, and the negation of such as 
 should in its estimation be declared unconstitutional; was 
 amended so as to give to the national executive alone that 
 power, unless overruled by two-thirds of each branch of the 
 legislature. The motion to associate the judiciary with the 
 president in the exercise of this function, was again brought 
 up July 21, but again voted down. 
 
 As reported by the committee on detail, August 6, the judi- 
 ciary was thus provided for : 
 
 "Article IX, Section 1 . The senate shall have power . . . 
 to appoint . . . judges of the Supreme Court. 
 
 "Article XI, Section 1. The judicial power of the United 
 States shall be vested in one Supreme Court, and in such 
 inferior courts as shall, when necessary, from time to time, be 
 constituted by the legislature of the United States. 
 
14 The Supreme Court of the United States. 
 
 " Section 2. The judges of the Supreme Court and of the 
 inferior courts, shall hold their offices during good behavior. 
 They shall at stated times receive for their services a com- 
 pensation, which shall not be diminished during their con- 
 tinuance in office. 
 
 " Section 3. The jurisdiction of the Supreme Court shall ex- 
 tend to all cases arising under the laws passed by the legislature 
 of the United States ; to all cases affecting ambassadors, other 
 public ministers and consuls ; to the trial of impeachment of 
 officers of the United States ; to all cases of admiralty and 
 maritime jurisdiction ; to controversies between two or more 
 States, except such as shall regard territory or jurisdiction; 1 
 between a State and citizens of another State; between citi- 
 zens of different States ; and between a State or the citizens 
 thereof, and foreign States, citizens or subjects. 
 
 " In all cases affecting ambassadors, other jgublic ministers 
 and consuls, and those in which a State shall be a party, this 
 jurisdiction shall_be original. In all other cases before men- 
 tioned it shall be appellate, with such exceptions and under 
 such regulations as the legislature shall make. The legisla- 
 ture may assign any part of the jurisdiction above-mentioned 
 (except the trial of the President of the United States), in the 
 manner and under the limitations which it shall think proper, 
 to such inferior courts as it shall constitute from time to time." 2 
 
 As reported by the Committee on Detail, the plan for the 
 judicial power contained several defects, which were subse- 
 quently remedied by the convention. The words, "both as 
 to law and fact," were added to the description of the appel- 
 late power in order to be more explicit. Another defect was 
 remedied by declaring the judicial power to extend to "all 
 
 1 The settlement of these classes of cases of interstate dispute was given 
 into the hands of the Senate, to be exercised in much the same manner, as 
 was provided in the Articles of Confederation for adjustment of prize cases. 
 In the final revision this power was transferred to the judiciary. 
 
 ? Madison's Papers, Vol. II, p. 1238. 
 
The Supreme Court of the United States. 15 
 
 cases in law and equity," 3 and not as worded in the commit- 
 tee's report merely " to all cases." The distinction was thus 
 made between these two classes of cases, a distinction so familiar 
 to all people of the United States. This was an important 
 change, for, as Curtis says, " This distinction which extends, 
 not only to the forms of pleading, but to the principles of 
 decision, the mode of trial and the nature of the remedy, had 
 been brought by the settlers of most of the colonies from 
 England and had been perpetuated in their judicial institutions. 
 It existed in most of the States at the time of the formation of 
 the national constitution, and it was, in fact, a characteristic 
 feature of the only system of judicature which the American 
 
 people had known, except in their courts of admiralty 
 
 If the appellate jurisdiction of the national tribunal was to be 
 exercised over any class of controversies originating in the 
 state courts, it was extremely important that the constitution 
 should expressly ascertain whether suits at law, or suits in 
 equity, or both, were to be embraced within that appellate 
 power." 
 
 A third and almost vital defect in the report of the Com- ■ 
 mittee on Detail, was the failure to embrace under the judicial 
 power of the United States, cases arising under the constitu- 
 tion and under treaties. It was only by the subsequent grant 
 of this power that the convention raised the Supreme Court to 
 its proper place as one of the coordinate powers of the central 
 government, and made it an efficient check on both federal 
 and state legislatures. 
 
 On September 8, all the articles, as amended and agreed to, 
 were referred to a committee on style for revision. The report 
 was made on the twelfth, and on the seventeenth the consti- 
 tution was engrossed and signed, and the convention adjourned. 
 
 As adopted, the constitution thus provides for our judiciary : 
 
 " Article III, Section 1 . The judicial power of the United 
 States shall be vested in one Supreme Court, and in such 
 
 3 Elliot, 483. 
 
16 The Supreme Court of the United States. 
 
 inferior courts as the congress may from time to time ordain 
 and establish. 
 
 " The judges, both of the supreme and inferior courts, shall 
 hold their offices during good behavior, and shall, at stated 
 times, receive for their services a compensation, which shall 
 not be diminished during their continuance in office. 
 
 " Section 2. The judicial power shall extend to all cases, in 
 law and equity arising under this constitution, the laws of the 
 United States, and treaties made, or which shall be made, 
 under their authority ; to all cases affecting ambassadors, other 
 public ministers and consuls ; to all cases of admiralty and 
 maritime jurisdiction ; to controversies to which the United 
 States shall be a party ; to controversies between two or more 
 States ; between a State and citizens of another State ; ' between 
 citizens of different States ; between citizens of the same State 
 claiming lands under grants of different States ; and between 
 a State or the citizens thereof, and foreign states, citizens or 
 subjects. 
 
 " In all cases affecting ambassadors, other public ministers and 
 • consuls, and those in which a Stote shall be a party, the Supreme 
 Court shall have original jurisdiction. In all other cases before 
 mentioned, the Supreme Court shall have appellate jurisdiction 
 both as to law and fact, with such exceptions and under such 
 regulations as the Congress shall make." 
 
 By this article we see finally created what has proved prob- 
 ably the best working branch of our government. In the 
 establishment of this court was taken the longest step towards 
 the solution of the problem of drafting a new scheme of gov- 
 ernment, so constructed as to satisfy State jealousies and to 
 preserve their proper rights of government, and yet to afford 
 a strong central government capable of commanding respect 
 abroad and deserving confidence at home ; which could har- 
 monize States' rights with federal strength. The difficulties 
 which had been overcome in the creation of a proper national 
 
 x Altered by Xlth Amendment. 
 
The Supreme Court of the United States. 17 
 
 judiciary we have partially seen. They are thus stated by 
 Judge Curtis in his work on the " Federal Courts : " " To con- 
 struct a judicial power within the federal government, and to 
 clothe it with attributes which would enable it to secure the 
 supremacy of the general constitution and of all its provisions, 
 to give to it exact authority that would maintain the dividing 
 line between the powers of the Nation and the States, and to 
 give to it no more ; and to add to these a faculty of dispensing 
 justice to foreigners, to citizens of different States, and among 
 the sovereign States themselves, with a more assured certainty 
 of the great ends of justice than any state power can furnish, 
 these were objects not readily or easily to be obtained, and yet 
 they were obtained with wonderful success." 
 
CHAPTEE III. 
 
 The Judiciary in the State Conventions. 
 
 After adoption by the constitutional convention, the consti- 
 tution was submitted for ratification to the various state 
 conventions. In these, the judiciary, though several times 
 attacked, received no serious assaults. 
 
 Mr. Wilson, of Pennsylvania, to whom we are just begin- 
 ning to give the tardy recognition of being one of the clearest 
 thinkers and soundest reasoners of his time, taking up Article 
 III, clause by clause, gave, in the convention of his State a 
 full and clear account of the benefits sure to follow from the 
 establishment of an adequate national judiciary. 
 
 In the Virginia convention, the judiciary was strongly 
 attacked by Grayson, Mason, and Patrick Henry. The great 
 point maintained by these was, that by the operation of the 
 federal supreme and inferior courts, the state judiciaries would 
 be interfered with in their jurisdictions ; that the jurisdiction 
 of the national courts was not marked out with sufficient 
 definiteness. Said Mr. Mason, 1 "What is there left the 
 State courts ? — The inferior courts are to be as numerous as 
 congress may think proper. They are to be of whatever 
 nature they please, — I am greatly mistaken if there be any 
 limitation whatsoever, with respect to the nature or jurisdic- 
 tion of these courts. When we consider the nature of these 
 courts, we must conclude that their effect and operation will 
 
 1 Elliot's Debates, III, 521. 
 
 18 
 
The Supreme Court of the United States. 19 
 
 be to utterly destroy the state governments, for they will be 
 judges how far their laws will operate. I think it will 
 destroy the state government, whatever may have been the 
 intention." 
 
 Patrick Henry, evidently thoroughly convinced that the 
 federal government was but a scheme gotten up for the 
 express purpose of oppression and subversion of the state gov- 
 ernments, and that if established it would necessarily be 
 administered by unscrupulous and extreme nationalists ; 
 expressed much the same objections as did Mason and Gray- 
 son. " I consider," said he, " the Virginia judiciary as one of 
 the best barriers against strides of power. So small are the 
 barriers against the encroachments and usurpations of Con- 
 gress, that when I see this last barrier — the independency of 
 the judges — impaired, I am persuaded I see the prostration of 
 all our rights. If by this system we lose our judiciary, and 
 and they cannot help us, we must sit down quietly and be 
 oppressed ! " * Henry also animadverted upon the implied 
 power of the Supreme Court to bring before its bar a State as 
 a defendant against an individual. 
 
 Madison made an elaborate. defense of the judiciary as pro- 
 vided for in the constitution. He denied that the constitution 
 would warrant the exercise by the Supreme Court of any 
 power to summon an unwilling State as defendant against an 
 individual. 2 It is curious to note that this power which was 
 afterwards actually exercised, was also denied as existing, by 
 Hamilton and Marshall. 
 
 Marshall in his State convention, defended with extreme 
 ability the judiciary against the objection that the state courts 
 would be seriously interfered with in their fields of jurisdic- 
 tion, and showed how overwrought were Henry's and Gray- 
 son's fears. Governor Randolph closed the Virginia debate 
 on the judiciary with a calm and fair, and upon the whole, 
 favorable summing up of the merits and demerits of the judi- 
 ciary as provided for. 
 
 1 Elliot's Debates, III, 539. • Elliot's Debates, III, 533. 
 
20 The Supreme Court of the United States. 
 
 In the convention of North Carolina was discussed the same 
 objection that had been raised in the other conventions, that 
 the clause " The judicial power shall extend to all cases in law 
 and equity arising under this constitution, the laws of the 
 United States, and treaties made, or which shall be made, 
 under their authority was of too general and vague a charac- 
 ter. 1 Mr. Dane in reply, made what appears to me, one of 
 the best general defenses of the judiciary made in any of the 
 conventions. 2 Striking, at the very start, at the heart of the 
 subject, he said : " For my own part I know but two ways in 
 which the laws can be executed by any government. If there 
 be any other it is unknown to me. The first mode is coer- 
 cion by military force, and the second is coercion through the 
 judiciary. With respect to coercion by force, I shall suppose 
 that it is so extremely repugnant to the principles of justice, 
 and the feelings of a free people, that no man will support it. 
 It must, in the end, terminate in the destruction of the liberty 
 of the people. I take it, therefore, that there is no rational 
 way of enforcing the laws but by the instrumentality of the 
 judiciary. From these premises we are left only to consider 
 how far the jurisdiction of the judiciary ought to extend. It 
 appears to me that the judiciary ought to be competent to the 
 decision of any question arising out of the constitution itself. 
 . . . Every member who has read the constitution with atten- 
 tion must observe that there are certain fundamental principles 
 in it, both of a positive and negative nature, which, being 
 intended for the general advantage of the community, ought 
 not to be violated by any future legislation of the particular 
 States. Every member will agree that the positive regulations 
 ought to be carried into execution, and that the negative 
 restrictions ought not to be disregarded or violated. Without 
 a judiciary the injunctions of the constitution maybe disobeyed, 
 and the positive regulations neglected and contravened." 
 
 A complete review of the debates in the State conventions 
 regarding the federal judicial powers, shows that the main 
 
 1 Elliot's Debates, IV, 136. 2 Elliot's Debates, IV, 155. 
 
The Supreme Court of the United States. 21 
 
 objections raised against it were but these two : First, that the 
 state judiciaries would be oppressed and interfered with ; an 
 objection which a century's experience has shown to have been 
 unfounded. Second, that States, considering themselves as 
 practically sovereign, would be liable to suit by an individual ; 
 an objection shown to have been correctly held, as decided in 
 the case of Chisholm vs. Georgia? and which had to be reme- 
 died by amendment to the constitution. 2 
 
 In several instances amendments were offered by the States 
 at the time of their ratification of the constitution, changing 
 more or less the nature and powers of the federal judiciary, 
 none of which were adopted. 
 
 1 2 Dallas, 417. 2 Xlth Amendment. 
 
CHAPTER IV. 
 
 Establishment and Jurisdiction op the Federal 
 
 Courts. 
 
 The ninth State ratified the constitution June 21, 1788, and 
 on April 30, 1789, the wheels of our present governmental 
 machinery began slowly to move. The first congress, in pur- 
 suance of the legislative power given to constitute a federal 
 judiciary, passed in 1789, what has been known as the Judi- 
 ciary Act ; a piece of legislation, in its perfect adaptation to 
 the political needs, and in its accuracy of expression, second to 
 none in our long list of congressional enactments. The act 
 was drafted by a committee composed of Patterson, Johnson 
 and Ellsworth, but was the work almost entirely of Ellsworth. 
 In the Senate it passed with a slight alteration by a vote of 
 fourteen to six. In the House it was attacked by Livermore, 
 of New Hampshire, Jackson, of Georgia and Burke, of South 
 Carolina ; but its passage was not seriously threatened. Liv- 
 ermore, however, was especially vehement in his opposition. 
 " For my part," he exclaimed, " I contemplate with horror 
 the effects of the plan. I think I see a foundation laid for 
 discord, civil war and all its concomitants. To avert these 
 evils I hope the House will reject the proposed system." 1 
 Many political predictions have failed of fulfilment, but few 
 have been proved so strikingly unfounded as this one of Liv- 
 ermore. 
 
 1 Debates of Congress, Vol. I, p. 814. 
 22 
 
The Supreme Court of the United States. 23 
 
 The first section of the Judiciary Act reads : " That the 
 Supreme Court of the United States shall consist of one Chief 
 Justice and five Associate Justices." The act further pro- 
 ceeds to establish the inferior courts and to define their fields 
 of jurisdiction as follows : Three grades of federal courts 
 were provided for. The United States was first divided into 
 judicial districts, and to each of these districts was given a 
 district court and a judge, appointed, of course, by the 
 President. These courts formed the lowest grade of courts. 
 As provided for in the Act, each State was made a dis- 
 trict, as were the Territories of Maine and Kentucky. 
 At present, owing to increased density of population, many 
 of the States are divided into two, and some into three 
 districts. 
 
 By the grouping together of these districts, circuits were 
 
 formed, and to each of these a circuit court was given. These 
 
 formed the grade of courts next higher than the district courts. 
 
 The number of circuits has differed at different times. By the 
 
 act of 1789 three were provided for; since 1869 there have 
 
 been nine. Until 1869 (excepting a short period in 1801) 
 
 there were no circuit judges, circuit work being done by the 
 
 supreme court justices. By the act of 1869 a circuit judge 
 
 was to be appointed by the President for each circuit. One of 
 
 the justices of the Supreme Court is, however, still allotted to 
 
 each of the circuits, who, after the expiration of the term of 
 
 the Supreme Court, visits his circuit, and tries the more 
 
 important cases which may have arisen there. The circuit 
 
 court may be held by the circuit judge, by the Supreme Court 
 
 justice or by the district judge of that district in which the 
 
 court is sitting ; or by any two of them, or by all three of 
 
 them sitting together. 
 
 Last, and highest of the federal courts, is the Supreme 
 Court at Washington, at present consisting of a Chief Justice 
 and eight Associate Justices. 
 
 The jurisdictional relations between the different grades of 
 
24 The Supreme Court of the United States. 
 
 the federal courts is simple. Their jurisdiction 1 is over 
 federal questions, that is over those cases mentioned in the 
 constitution and covered by Acts of Congress in pursuance 
 thereof, to which the judicial power of the United States has 
 been extended. To the circuit courts come all appeals from 
 their district courts, which is allowed in all cases involving 
 sums of five hundred dollars and over. The Supreme Court 
 is the court of last resort, and to it come appeals from the 
 circuit courts in cases involving five thousand 2 dollars and over. 
 In addition to making these regulations concerning appeals 
 from a lower to a higher federal court, the judiciary act gives 
 to the Supreme Court the revision of certain classes of cases 
 decided in the highest state courts. The twenty-fifth section 
 of the act provides that this may be done in the following 
 three classes of cases : " First, where is drawn in question the 
 validity of a treaty, or statute of, or an authority exercised 
 under the United States, and the decision is against their 
 validity. Second, where is drawn in question the validity of 
 a statute of, or an authority exercised under the laws of a 
 State on the ground of their being repugnant to the constitu- 
 tion, treaties, or laws of the United States, and the decision is 
 in favor of their validity. Third, where any right, privilege, 
 or immunity is claimed under the constitution, or any treaty, 
 or statute of, or commission held, or authority exercised under 
 the United States, and the decision is against the title, right, 
 privilege, or immunity specially set up, or claimed by either 
 party under such constitution, statute, commission or author- 
 ity." No minimum amount to be involved in order to admit 
 of an appeal to the Supreme Court was imposed in these classes 
 
 1 Congress did not see fit to at once extend the jurisdiction of the inferior 
 federal courts over all cases permitted by the constitution. But a small 
 portion of this was at first granted, and this jurisdiction has been widened 
 from time to time. 
 
 * At first $2,000. See Act of 1789. 
 
The Supreme Court of the United States. 25 
 
 of cases, for it was seen that in a case involving but a slight 
 pecuniary amount, a federal question might be involved, the 
 settlement of which would be of great importance to the 
 whole people. 
 
 This authority of the Supreme Court to revise certain 
 decisions of the state courts was not directly granted by the 
 constitution, but implied in that clause which says that " the 
 judicial power shall be vested in a 'Supreme Court,' " and in 
 Article VI, which further provides that "the constitution 
 and the laws of the United States which shall be made in 
 pursuance thereof, and all treaties made, or which shall be 
 made, under the authority of the United States, shall be the 
 supreme law of the land, and the judges in every State shall 
 be bound thereby, anything in the constitution or laws of any 
 State to the contrary notwithstanding." The significance of 
 this clause in this connection had probably not been fully 
 recognized at the time of the ratification of the constitution 
 and the correctness of this application of the clause was, for a 
 considerable time, denied by Jefferson and his school. This 
 portion of the power of the Supreme Court will receive a 
 fuller consideration in a following chapter, which treats of the 
 national judiciary in its relations to the state governments. 
 
 To recapitulate then. The cases decided by the Supreme 
 Court are of two classes. First, those of original jurisdiction, 
 as specified in the constitution ; and second, those of appellate 
 jurisdiction. Of this latter class there are two kinds, those 
 coming to the Supreme Courts by way of appeal from the 
 lower federal courts, and those coming thither by way of 
 appeal from the highest state courts. 
 
 Besides the courts which have been mentioned there are a 
 few other federal courts. The District of Columbia being 
 under the direct control of the United States, its courts are 
 federal tribunals, and cases in them admit of an appeal to the 
 Supreme Court. The same is true of territorial courts estab- 
 lished by federal authority. 
 
26 The Supreme Court of the United States. 
 
 ■ Though a sovereign nation, and therefore not liable to suit, 
 the United States permits parties having claims against it, to 
 sue for the amount, and for this purpose has established at 
 Washington' a Court of Claims, held by five judges. From 
 this court appeals lie, in some cases to the Supreme Court, 
 and in other cases they are referred to Congress for final 
 adjudication. 1 
 
 1 Note. — Provision was made in the Act of 1789 by which certain speci- 
 fied cases begun in state courts, but which, by their nature permitted of 
 trial in federal courts, might be transferred thither. This power of 
 removal has been subsequently widened, especially by the Act of 1875, 
 until now any cases may be thus removed which might have been origi- 
 nally brought in a federal court. Vide post. 
 
CHAPTEE V. 
 
 The Supreme Court and Congress. 
 
 The elevation of the judiciary into a branch of government 
 not only separate from the executive and legislative branches, 
 but coordinate with them in power, has undoubtedly been 
 one of the great successes of our political system. That func- 
 tion which has raised the Supreme Court to a level with the 
 executive and legislature, and which has made its influence 
 such a potent factor in our history, has been its right, as inter- 
 preter of the constitution, to review the acts of the legislature, 
 and to declare not law, such acts, as in its estimation are not 
 in harmony with the instrument of which it is the guardian. 
 It is the possession of this power that causes Sir Henry Maine 
 to say that it is a "virtually unique creation of the conven- 
 tion ; " and Mr. Taylor to characterize it as " an institution 
 without a prototype in history." 
 
 The question whether, in the establishment of our Supreme 
 Court in 1787 we see the establishment of an original judici- 
 ary with unique powers, turns, as on a pivotal point, upon the 
 originality of the method of restraining legislative action by a 
 separate judicial tribunal. 
 
 A study of European governments of that time shows that 
 in this particular the convention followed no European exam- 
 ple. In Europe, now, as then, there cannot be found a 
 legislature that is not the judge of its own powers. There the 
 highest courts have, in most cases, developed or rather differ- 
 entiated out of the legislative body, and have remained to a 
 
 27 
 
28 The Supreme Court of the United States. 
 
 considerable extent parts of their parents. The English Par- 
 liament, the legislature with which the colonists were, of 
 course the most familiar, is omnipotent. As De Lolme said, 
 " It is a fundamental principle with the English lawyers that 
 parliament can do everything except making a woman a man, 
 or a man a woman." * Even to-day, after the immense consti- 
 tutional changes which this century has seen, the continent 
 i affords no parallel to our Supreme Court. In Switzerland 
 ; the legislature is itself the authorized interpreter of the federal 
 \ constitution. The only semblance of a federal court possessed 
 by the German Empire is the Imperial Court, at Leipzig, 
 which has no power to declare a law unconstitutional. 
 ! Neither France nor Spain possesses such a court. The non- 
 sovereign legislatures of those English colonies that enjoy 
 representative institutions, are kept within their legitimate 
 limits, not by judges, but in the last resort by the Imperial 
 Parliament. In the Federal government of Canada, the Gov- 
 ernor in council can, within a year from its receipt, disallow 
 any act of a provincial legislature, and this power of disallow- 
 ance can be exercised even with respect to an act clearly within 
 the constitutional jurisdiction of the provincial legislature. 
 Acts of the Dominion Parliament of Canada at variance with 
 the interests of the Empire can be disallowed by the Imperial 
 Government. 1 
 
 If, then, we are to find courts possessing prior to 1787, this 
 power of which we are speaking, it is to America we must look. 
 It will be my effort to show that decided evidences of the 
 exercise of this power by colonial courts prior to the assem- 
 bling of the constitutional convention may be found, and that 
 though we cannot, therefore, claim for the framers of our con- 
 stitution the honor of entire originality in this case, we can 
 claim it for the American people. 
 
 1 Federal Government in Canada. J. G. Bourinot. J. H. U. Studies, 
 Seventh Series. 
 
The Supreme Court of the United States. 29 
 
 To the Anglo-Saxon race in America belongs the honor of 
 having developed government by written constitutions. The 
 idea of a written constitution, as sanctioned by and ema- 
 nating from the people, though early hinted at and partially 
 developed by such writers as Sidney, Vane, and Locke was an 
 untried experiment, until adopted by the American colonies. 
 Now, with the establishment of a written constitution, the 
 existence of safeguards against unconstitutional legislation is 
 necessary. There are two methods which may be employed. 1 
 Unconstitutional legislation may be opposed; first, by the 
 force of public opinion and moral sanction or sentiment ; or, 
 second, by the erection of courts with power to decide as to the 
 constitutionality of such laws as may be brought into ques- 
 tion. In the organization of our government we chose the 
 latter method, but in doing so followed numerous prece- 
 dents set us by the colonial courts in the construction of their 
 several constitutions. 
 
 As early as 1780 Chief Justice Brearley, of the Supreme 
 Court of New Jersey, is cited as giving it as the opinion of 
 himself and his associates, that the judiciary had the right to 
 pronounce upon the constitutionality of laws. In Virginia, 
 in 1776 2 an act was passed taking from the governor the 
 power of pardoning, and conferring it on the legislature. In 
 1782 a case under this law was carried to the courts, and it 
 was there argued that the act of the Assembly was contrary 
 to the intention of the constitution and therefore void. 3 Ed- 
 mund Randolph, then Attorney-General of his State, main- 
 tained that whether contrary or not to the constitution, the 
 courts had no other choice than to apply it. In reply, the 
 Chief Justice made this remarkable answer : " If the whole 
 legislature (an act to be deprecated) should attempt to over- 
 
 1 Cf. Dicey, Law of the Constitution, p. 119. / ' 7 - 
 
 8 In the preparation of the following paragraph I have been much 
 assisted by an article in " The Advocate," for May 18, 1889, entitled " The 
 Highest Power of the American Judiciary." 
 
 3 Commonwealth v. CaUm, 4 Call. (Va.), 5. 
 
30 The Supreme Court of the United States. 
 
 leap the bounds prescribed to them by the people, I, in 
 administering the public justice of the country, will meet the 
 united powers in my seat in this tribunal, and, pointing to the 
 constitution, will say to them, 'Here is the limit of your 
 authority, and hither shall you go but no further.' " Though 
 not deciding the point, the court said : " The power of the 
 court to declare the nullity of a law passed in its form by the 
 legislative power, without exercising the powers of that 
 branch, contrary to the plain terms of the constitution, is 
 undoubtedly, a deep, important, and I may add, tremendous 
 question, the decision of which might involve consequences to 
 which gentlemen may not have extended their ideas." The 
 report of the case adds, that " Chancellor Blair, with the rest 
 of the judges, was of the opinion that the court had power to 
 declare any resolution of the legislature or of either branch of 
 it unconstitutional and void." In a remonstrance which the 
 court of appeals prepared and sent to the Virginia legislature, 
 the following language was used : " But in the progress of 
 their discussion, they (the Remonstrants) have found it una- 
 voidable to consider more important questions, viz : Whether 
 the principles of this case do not violate those of the constitu- 
 tion or form of government, which the people in 1776, when 
 the former bands of their society were dissolved, established 
 as the foundation of that government, which they judged 
 necessary for the preservation of their persons and their prop- 
 erty ? and, if such violation were apparent, whether they had 
 power, and it was their duty to declare that the act must yield 
 to the constitution ? On this view of the subject, the follow- 
 ing alternatives presented themselves to the court ; either to 
 decide those questions or resign their offices. They judged 
 that a resignation would subject them to the reproach of 
 deserting their stations — and on that ground found themselves 
 obliged to decide — and in that decision to declare that the con- 
 stitution and the act are in opposition, and cannot exist 
 together ; and that the former must control the latter. If this 
 opinion, declaring the supremacy of the constitution needed 
 
The Supreme Court of the United States. 31 
 
 any support, it may be found in the opinion of the legislature 
 themselves, who have in several instances considered the con- 
 stitution as prescribing limits to their powers." 
 
 The case of Rutgers v. Waddington, 1 decided in 1784, in the 
 mayor's court of New York, in which Hamilton distinguished 
 himself, is often cited as a case of this class of which we are 
 speaking. Its decision seems, however, to have been grounded 
 upon opposition to natural rights and justice, rather than upon 
 conflict with written constitutional right. 
 
 In New York, several years before this, in the case of 
 Holmes v. Walton, it was decided that the law providing for 
 trial by a jury of six was unconstitutional. 
 
 In 1787 the courts of North Carolina declared an act of the 
 legislature void as unconstitutional. 2 
 
 Bancroft, in his History of the Constitution, quotes a letter 
 from J. B. Cutting to Jefferson, dated in 1788, which states 
 that the Supreme Court of Massachusetts had, some years 
 before, declared a legislative act unconstitutional. 3 
 
 The case of Trevitt v. Weeden* decided in Rhode Island in 
 1786, is cited by both Judge Cooley and Professor McMaster 
 as deciding a law unconstitutional. The author of the article 
 in The Advocate, already referred to, says that he is unable to 
 find any basis for such an opinion, and clearly proves his point. 
 The facts of the case were these. The Rhode Island legisla- 
 ture had passed a legal tender law to force the people to take 
 the paper of the State at its face value. Upon being contested 
 and brought into court, the court declined to enforce the law 
 on the ground that they had no jurisdiction. The question of 
 the constitutionality of the law had been raised, though the 
 court did not rest its decision upon that ground. However, 
 the legislature, mistaking the plea for the judgment, summoned 
 
 1 Quoted by McMaster, I, 219. 
 
 » Bayard v. SingkUm, 1 Martin, 42. 3 Vol. II, pp. 472-3. 
 
 * Cited by Cooley, Constitutional Limitations, p. 160, note 3. 
 
32 The Supreme Court of the United States. 
 
 its judges before its bar, and made an unsuccessful attempt to 
 impeach them. 
 
 In the light of these oases, which have been cited, I think 
 it can be maintained that the idea of control of the legislature 
 by judicial authority had been developed before the assembling 
 of the convention of 1787. It had been specifically asserted 
 in at least as many as five colonies, and had been the subject 
 of considerable popular discussion. When the American 
 republics solved for the world the problem of federal union, 
 the supreme judiciary, which they erected, was taken from 
 their own state governments, powers being given it commen- 
 surate with its new and enlarged duties. Everywhere but in 
 America its powers were unique. 
 
 Leaving now the historical treatment of the genesis of the 
 Supreme Court, and of its powers, we turn to a more critical 
 consideration of the relation that the national judiciary bears 
 to the legislature — examining the subject from both a consti- 
 tutional and administrative standpoint. 
 
 Our constitution, as adopted in 1787, formed but the out- 
 line for a scheme of government — an outline to be filled out 
 by subsequent legislation. It was a scheme, which, in order 
 to endure, was made elastic and capable of a growth that 
 should be adequate to meet the exigencies of a developing 
 nation. The regulation of this growth by legislation was one 
 of the main duties which a permanent supreme tribunal was 
 expected to perform. 
 
 The constitution was to be the supreme law of the land. 
 The federal legislature was to be a body with limited powers, 
 considering only those subjects allowed it by the constitution. 
 No legislative act contrary to any provision of the constitution 
 could therefore be valid. But the legislative sphere was not, 
 and wisely not, fixed by definite hard and fast lines. There 
 were the implied powers of passing such laws as would facili- 
 tate the operation and execution of the powers specifically 
 granted to Congress. By means of these powers could the 
 development of the government be carried on by legislative 
 
The Supreme Court of the United States. 33 
 
 enactments ; but this development had to be in strict conformity 
 with the principles and provisions of the constitution. 
 
 In forming a scheme for central government, our fathers were 
 restrained, not only by the fear lest a national government 
 should be established so strong as to threaten the autonomy of 
 the States, but were fearful lest, like Frankenstein, they should 
 create a being which, when life were once breathed into it, 
 would be beyond their control, and which, though originally 
 with proper powers, would in time, by its own strength, draw 
 to itself increasing powers and become a tyrant. To avert 
 this evil, the members of the convention made the three 
 branches of government coordinate in power. As a necessary 
 consequence upon the adoption of this theory of making the 
 departments of government separate, and in a sense independ- 
 ent of each other in their workings, was the creation of an 
 elaborate system of cheeks and balances between the depart- 
 ments so divided. In a letter written to John Taylor, John 
 Adams l enumerates eight distinct checks existing in our gov- 
 ernment intended to operate as balances between the central 
 and state governments, the departments of the central govern- 
 ment, between the branches of the legislature, and between the 
 people and their representatives. " Here," says he, " is a com- 
 plicated refinement of balances, which, for anything I recollect, 
 is an invention of our own and peculiar to us." 
 
 The most powerful of these checks in retaining, not only 
 the proper relations between the state and federal power, but 
 between the departments of the federal government, has 
 undoubtedly been the Supreme Court. It has been the bal- 
 ance wheel of the republic. The constitution as supreme over 
 all these powers, has set to them a limit — the Supreme Court, 
 as interpreter of the constitution, has been the instrument for 
 rendering operative these limitations. 
 
 That branch of our government, as indeed in all representa- 
 tive governments, most needing a check to curb its ambition 
 
 1 Works, Vol. II, p. 467. 
 
34 The Supreme Court of the United States. 
 
 for aggrandizement of power, is the legislature. In the Fed- 
 eralist, No. 48, Madison writes : " In a government, where 
 numerous and extensive prerogatives are placed in the hands of 
 an hereditary monarch, the executive is very justly regarded 
 as the source of danger, and watched with all the jealousy 
 which a zeal for liberty ought to inspire — but in a representa- 
 tive republic, where the magistracy is carefully limited both 
 in the extent and the duration of its power, and where the 
 legislative power is exercised by an assembly which is inspired 
 by a supposed influence over the people, with an intrepid con- 
 fidence in its own strength, which is sufficiently numerous to 
 feel all the passions which actuate a multitude, yet not so 
 numerous as to be incapable of pursuing the objects of its 
 passions by all the means which reason prescribes ; it is against 
 the enterprising ambition of this department that the people 
 ought to indulge all their jealousy and exhaust all their pre- 
 cautions. Its constitutional powers being at once more extensive 
 and less susceptible of precise limits, it can, with greater facility, 
 mask under complicated and indirect measures, the encroach- 
 ments that it makes on the coordinate departments." In this 
 wholesome fear Madison stood supported by the whole people. 
 As Von Hoist says : x " The people lived in the honest convic- 
 tion that no matter how little power might be given to Congress, 
 it should be the first care of all patriots and friends of liberty to 
 keep a watchful eye upon it, and to sound the alarm at the first 
 attempt it should make to exceed its powers." The supreme 
 value of an independent judiciary was to be its service as a 
 check upon this power. By the creation of this tribunal the 
 architects of our government hoped, in escaping from the 
 Scylla of executive despotism, to avoid falling into the Charyb- 
 dis of legislative tyranny. 
 
 To render the Supreme Court capable of performing this 
 high function expected of it, it was necessary to endow it with 
 two attributes; first, independence of the legislature; and 
 
 1 Vol. I, p. 33. 
 
The Supreme Court of the United States. 35 
 
 second, power to hold, in suits between parties, legislative acts 
 unconstitutional, and therefore void. The granting of this 
 power was not left to the mere caprice of its creators, but was 
 forced upon them by the very nature of our government. The 
 establishment of a sovereign legislature is inconsistent with 
 the very aim of federalism, namely, the maintenance of a 
 division of powers between the national and state govern- 
 ments. To have made Congress the authorized interpreter of 
 its own acts, would evidently have left unobstructed the road 
 to rapid absorption of state duties in national governmental 
 activity. 
 
 The theory, then, of our sovereignty is this : " In every 
 sovereign state there resides an absolute and uncontrolled 
 power of legislation. In Great Britain this complete power 
 resides in the parliament, in the United States it resides in the 
 people themselves as an organized body politic. But the 
 people, by creating the constitution of the United States have 
 delegated this power as to certain subjects, and under certain 
 restrictions to the Congress of the Union ; that portion they 
 cannot resume except as it may be done through amendment 
 to the constitution." l 
 
 In the United States there are four grades of law. First, 
 and highest, the federal constitution, next in power the federal 
 laws, statutes and treaties, next lower the state constitutions, 
 and lowest the bodies of state law. In case of claimed con- 
 flict between the first and second, or between the first or 
 second and the two lower grades of law, the only question to 
 be decided by the Supreme Court is as to the existence of that 
 conflict. If, from its interpretation of the law, the Supreme 
 Court decides such conflict to exist its work is done. The 
 higher law governs the lower. There is no contest, no strug- 
 gle between the grades of law. It has already been settled 
 which grade of law is the higher, and therefore to govern. 
 There is no dispute between the court and the legislature. 
 
 1 Cooley : Constitutional Limitations. 
 
36 The Supreme Court of the United States. 
 
 " It is natural to say," says Dicey, 1 " that the Supreme Court 
 pronounces acts of Congress invalid, but in fact this is not so. 
 The court never pronounces any opinion whatever, upon an 
 act of Congress. What the court does is simply to determine 
 that in a given case, A is, or is not, entitled to recover judg- 
 ment against X ; but in determining that case, the court may 
 decide that an act of Congress is not to be taken into account, 
 since it is an act beyond the constitutional power of Congress." 
 
 Every act of the legislature is presumably valid. Its con- 
 stitutionality can be tested only when brought before the court 
 in a specific case. The court never goes to meet a law, nor 
 anticipates its execution by an opinion as to its constitution- 
 ality. The court is brought into the political arena, independ- 
 ently of its own will. It judges the law only because it is 
 obliged to judge the case. In 1795, Washington, upon the 
 advice of his cabinet, asked the justices of the Supreme Court 
 for an opinion as to the proper construction of certain clauses 
 of the treaty with France. But they declined to give it, hold- 
 ing that it would not be proper to give an opinion upon any 
 question not brought before the court in regular form, in some 
 particular suit. 
 
 Several years may thus elapse after the enactment of a law, 
 before a case, involving its validity comes before the court. 
 The Missouri Compromise was not declared unconstitutional 
 until thirty-five years after its enactment. In 1798 the Fed- 
 eralists passed the obviously unconstitutional Alien and Sedi- 
 tion Acts, yet they never came before the Supreme Court for a 
 decision as to their constitutionality. At first blush this 
 might appear as a defect in our system, and that, so far at 
 least as this one point is concerned, a " council of revision," as 
 several times suggested in the convention would have been 
 better. A further reflection shows us however, that upon the 
 whole this is a beneficial rather than detrimental feature. In 
 the first place time is given for calm deliberation and careful 
 
 1 Law of the Constitution, p. 150. 
 
The Supreme Court of the United States. 37 
 
 consideration of the measure ; and also opportunity to see how 
 the act really works, and whether it is so interpreted by the 
 the people as to stand in opposition to any of the principles of 
 the constitution. And, in the second place, were the power of 
 nullifying a law given into the hands of a revisionary council, 
 the laws would be judged from abstract theoretical principles, 
 and not upon concrete grounds, as is the case in the Supreme 
 Court, when they are brought into question in particular 
 cases. 1 
 
 If an act is held void it is because it is contrary to the con- 
 stitution, and not because the court claims any control over 
 the legislature. The will of the people as expressed in its 
 fundamental law, is considered as more direct and authorita- 
 tive, than their will as expressed through their representives in 
 congressional enactment. This is the one ground upon which 
 the court can declare an act null and void. The court makes 
 no investigation into what were the motives of the legislature 
 in enacting a law, and takes no consideration of what will be 
 the probable political or economic results of the measure. " It 
 is not the province of the court to decide upon the justice or 
 injustice, the policy or impolicy of the laws. The decision of 
 that belongs to the political or law-making power ; to those 
 who framed the constitution. The duty of the court is to 
 interpret the instrument they have passed." This was the 
 ground taken by Taney in his decision in the famous Dred 
 Scott case. In other words, the intentions of the framers of 
 the constitution must govern, be they good or bad. " Give up 
 this principle," said Taney, "and the Supreme Court will 
 become a mere instrument to reflect the current popular opin- 
 ion and passion of the day." If the will of the people as 
 expressed in the constitution, no longer represents the present 
 will of the people, the evil can be remedied by that one means 
 of obtaining a direct opinion of the people, amendment to the 
 constitution. 
 
 ' x Of. De Tocqueville, pp. 105-6. 
 
38 The Supreme Court of the United States. 
 
 Every statute is considered valid as long as there is any 
 reasonable interpretation by which it may be held so. The 
 legislature is presumed to have acted within its powers, and 
 only the strongest proofs to the contrary are sufficient to nul- 
 lify its act. Congress must wantonly go very far outside the 
 plain meaning of the constitution, before the court will inter- 
 fere to prevent the operation of the law. In the case of 
 Fletcher v. Peck, 1 Marshall stated this preponderance of proof 
 which shall be necessary to justify the court in ignoring an act 
 of the legislature. He said, " The question, whether a law be 
 void for its repugnancy to the constitution, is at all times 
 a question of much delicacy, which ought seldom, if ever, to 
 be decided in the affirmative in a doubtful case. The court, 
 when impelled by duty to render such a judgment, would be 
 unworthy of its station could it be unmindful of the solemn 
 obligations which that station implies. But it is not on 
 slight implication or vague conjecture that the legislature is to 
 be pronounced to have transcended its powers, and its acts to 
 be considered as void. The opposition between the constitu- 
 tion and the law should be such that the judge feels a clear 
 and strong conviction of their incompatibility with each other." 
 In the second legal tender case, Justice Strong emphasized the 
 point still more strongly. He said : " A decent respect for a 
 co-ordinate branch of the government demands that the judi- 
 ciary should presume, until the contrary is clearly shown that 
 there has been no transgression of powers by Congress, all the 
 members of which, act under the obligation of an oath of 
 fidelity to the constitution. . . It is incumbent, therefore, upon 
 those who affirm the unconstitutionality of an act of Congress 
 to show that it is in violation of the provisions of the consti- 
 tution. It is not sufficient for them that they succeed in 
 raising a doubt." 2 " If an act may be valid or not according 
 to circumstances a court would be bound to presume that such 
 circumstances existed as would render it valid." 3 
 
 1 6 Cranch, 87. 8 Knox v. Lee, 12 Wall., 531. 
 
 3 Talbot v. Hudson, 16 Gray, 417. 
 
The Supreme Court of the United States. 39 
 
 Iu addition to this proper hesitancy, the court has made it 
 a rule not to render a decision invalidating a legislative act, 
 unless it be concurred in by a majority, not of the judges sit- 
 ting, as is the usual rule, but of the entire bench. In the 
 famous case of Briscoe v. Bank of Commonwealth of Kentucky, 1 
 for instance, when first tried before Marshall, a majority of the 
 court sitting declared the issuing of bills of credit by the bank 
 to have been unconstitutional. A majority of the entire bench, 
 however, not concurring in this decision, a reargument was 
 ordered, and coming before the court next year, then under 
 Taney, Chief Justice, the previous decision was reversed. 
 
 Leaving the consideration of the attitude in which the 
 Supreme Court stands towards the Congress when called upon 
 to pass upon the validity of one of its acts, we turn now to the 
 actual application of the power, and to the manner in which 
 its exercise has been received by the people. 
 
 An act of Congress was first declared unconstitutional by 
 the Supreme Court in 1803, in the case of Marbury v. Mad- 
 ison. 2 Before this, is 1791, in Haybum's 3 case, an act of 
 Congress which had assigned extra-judicial duties to the cir- 
 cuit justices, had been decided unconstitutional, but it was in 
 1803 that the principle was first definitely and clearly applied 
 by the Supreme Court. The facts of the case were these : 
 Marbury had been appointed a Justice of the Peace by Presi- 
 dent Adams for the District of Columbia. His commission 
 had been signed, but not delivered, when Jefferson became 
 President. Jefferson's Secretary of State, Madison, consider- 
 ing the commission not complete, not having been delivered, 
 refused to hand it over to the person named in it. Marbury 
 asked from the Supreme Court a mandamus to compel him to 
 do so, the power to issue such a mandamus having been granted 
 to the Supreme Court as a portion of its original jurisdiction 
 by the Judiciary Act of 1789. The constitutionality of this 
 part of the Judiciary Act was questioned by Madison. The 
 
 1 11 Peters, 257. 2 1 Cranch, 137. 3 2 Dallas, 410. 
 
40 The Supreme Court of the United States. 
 
 court decided that this provision was not warranted by the 
 terms of the constitution, and thus for the first time, the court 
 became involved in a consideration of the fundamental ques- 
 tion whether the constitution was to be regarded as an absolute 
 limit to the legislative power, or whether, as in England, it 
 was to be at the mercy of the legislature. Here the point 
 was to be decided, if possible, once for all. With unanswera- 
 ble logic, Marshall, in his opinion, concurred in by the whole 
 court, proceeded to prove that the grant, not being made by the 
 constitution, must necessarily be void and of no effect, and 
 that the court had the power to so declare it. Said he : 
 " The powers of the legislature are defined and limited. To 
 what purpose is that limitation committed to writing, if these 
 limits may at any time be passed by those intended to be 
 restrained? ... It is a proposition too plain to be contested 
 that either the constitution controls any legislative act repugnant 
 to it, or that the legislature may alter the constitution by an ordi- 
 nary act. Between these two alternatives there is no middle 
 ground. The constitution is either a superior paramount law, 
 unchangeable by ordinary means, or it is on a level with ordi- 
 nary legislative acts, and, like other acts, is alterable when the 
 legislature is pleased to alter it. If the former part of the 
 alternative be true, then a legislative act contrary to the consti- 
 tution is not law; if the latter part be true, then written 
 constitutions are absurd attempts on the part of the people to 
 limit a power, in its own nature illimitable." This power 
 thus set forth has never been seriously questioned since. 
 
 An interesting point still to be considered in connection 
 with the Supreme Court and the National Legislature, is the 
 action of the court in connection with the assumption by Con- 
 gress of the so-called "implied powers" of legislation, embraced 
 in the clause of the constitution which reads : " [The Con- 
 gress shall have power] To make all laws which shall be 
 necessary and proper for carrying into execution the foregoing 
 powers, and all other powers vested by this constitution in the 
 government of the United States, or in any department or 
 
The Supreme Court of the United, States. 41 
 
 officer thereof." As a rule this clause has been liberally 
 interpreted, and this, for the reason, as has already been said, 
 that the legislature is always eager to assume all power possi- 
 ble, and its acts are always presumed to be constitutional by 
 the courts unless shown to be not so, by the strongest proofs. 
 In the all-important case of McCulloeh v. Maryland^ 
 decided in 1816 was brought into question the constitutional 
 right of Congress to establish a national bank. The right to 
 establish such an institution was claimed to be one of the 
 implied powers of Congress, and in so deciding it, the court, in 
 the course of its decision, rendered by Marshall, thus laid down 
 what it conceived to be the correct rule in the interpretation of 
 these implied powers. " The government, which has a right 
 to do, and has imposed on it the duty of performing that act, 
 must, according to the dictates of reason, be allowed to select 
 the means. ... It must have been the intention of those who 
 gave these powers, to insure, as far as human prudence could 
 insure, their beneficial execution. This could not be done by 
 confining the choice of means to such narrow limits as not to 
 leave it in the power of Congress to adopt any which might 
 be appropriate. This provision is made in a constitution 
 intended to endure for ages to come, and consequently to be 
 adapted to the various crises of human affairs. To have pre- 
 scribed the means by which the government should, in. all 
 future time, execute its powers, would have been to change 
 entirely the character of that instrument, and give it the prop- 
 erties of a legal code. It would have been an unwise attempt 
 to provide, by immutable rules, for exigencies, which, if fore- 
 seen at all, must have been seen dimly, and which can be best 
 provided for as they occur. To have declared that the best 
 means shall not be used, but those alone, without which the 
 power given would be nugatory, would have been to deprive 
 the legislature of the capacity to avail itself of experience, to 
 
 1 4 Wheat., 316. 
 
42 The Supreme Court of the United States. 
 
 exercise its reason, and to accommodate its legislation to cir- 
 cumstances. . . . We admit as all must admit, that the powers 
 of government are limited, and that its limits are not to be 
 transcended. But we think the sound construction of the con- 
 stitution must allow to the national legislature that discretion 
 with respect to the means by which the powers it confers are 
 to be carried into execution, which will enable that body to 
 perform the high functions assigned to it, in the manner most 
 beneficial to the people. Let the end be legitimate, let it be 
 within the scope of the constitution, and all means which are 
 appropriate, which are plainly adapted to that end, which are 
 not prohibited, but consist with the letter and spirit of the 
 constitution are constitutional. . . . Should Congress in the 
 execution of its powers, adopt measures which are prohibited by 
 the constitution ; or should Congress under pretext of executing 
 its powers, pass laws for the accomplishment of objects not 
 intrusted to the government; it would become" the painful 
 duty of this tribunal, should a case requiring such a decision 
 come before it, to say that such an act was not the law of the 
 land. But where the law is not prohibited, and is really cal- 
 culated to effect any of the objects entrusted to the govern- 
 ment, to undertake to inquire here into the degree of its 
 necessity, would be to pass the line which circumscribes the 
 judicial department, and to tread on legislative ground. This 
 court disclaims all pretensions to such a power." Of all the 
 decisions of Marshall, none serves better than this to show his 
 attitude and that of the court towards the constitution during 
 the greater part of his term as Chief Justice. This has been the 
 excuse for quoting his opinion at such length. In this decision 
 William Pinckney is said to have remarked he saw " a pledge 
 of immortality of the union." 
 
 Other interesting references to this point of implied powers 
 can be found in the cases of United States v. Fisher 1 and Gib- 
 bons v. Ogden? 
 
 1 2 Cranoh, 358. 2 9 Wheat., 187. 
 
CHAPTER VI. 
 
 The Supreme Court and the State Legislatures 
 and Judiciaries. 
 
 A treatment of the relations between the Federal judiciary 
 and the legislatures and judiciaries of the States composing 
 the union, leads us into an investigation of the relations 
 between the national and state governments, that is to say, of 
 the real nature of our Union. As will be remembered, that 
 which has been the inherent defect of the old confederate 
 government was, that its laws operated upon States and not 
 upon individuals ; and that it lacked the power to enforce obe- 
 dience of the States to its statutes. Under this regime the 
 States were decidedly superior to the Central Government ; in 
 fact they were almost everything and the general government 
 almost nothing. 
 
 By the new constitution framed in 1789, the general gov- 
 ernment, in its proper field, was made supreme; but the 
 supremacy thus conferred could be peacefully maintained, 
 only by clothing the federal government with judicial and 
 executive power, adequate to interpret and carry into execu- 
 tion its commands. The federal law had to receive an inter- 
 pretation uniform and free from local prejudices. " It was 
 essential, therefore, to its very existence as a government that 
 it should have the power of establishing courts of justice, 
 altogether independent of state power, to carry into effect its 
 own laws ; and that a tribunal should be established in which 
 all cases which might arise under the constitution and laws 
 
 43 
 
44 The Supreme Court of the Untied States. 
 
 and treaties of the United States, whether in a state court 
 or court of the United States, should be finally and conclu- 
 sively decided." 1 For these reasons a Supreme Court was 
 provided, Congress given the power to establish other inferior 
 courts, and the judicial power of the United States made to 
 extend " to all cases in law and equity arising under this con- 
 stitution, the laws of the United States, and treaties made, or 
 which shall be made under its authority." Not only this, but 
 jurisdiction was given over all cases in which a State, as a 
 State, was in any way interested, or in which citizens of differ- 
 ent States were contesting. Added to this was the second 
 clause of Article VI which provided that the laws of the 
 United States should be the supreme law of the land ; and 
 judges in every State to be bound thereby, anything in the con- 
 stitution or laws of any State to the contrary notwithstanding. 
 
 The double purpose to be subserved by the erection of a 
 federal judiciary was to be, the preservation of the States in 
 their rights of government, as well as the protection of the 
 general government against legislative encroachments on the 
 part of the state legislatures. 
 
 "The judicial power was justly regarded as indispensable, 
 not only to maintain the supremacy of the laws of the United 
 States, but also to guard the States from any encroachment 
 upon their reserved rights by the general government. . . . This 
 tribunal, therefore was erected, and the powers of which we 
 have spoken, conferred upon it, not by the federal govern- 
 ment, but by the people of the States, who favored and 
 adopted the government, and conferred upon it all the powers, 
 legislative, executive and judicial, which it now possesses." 2 
 
 The Supreme Court has found it necessary in several cases 
 to discuss the nature of our Union, and before considering 
 the attitude which the Supreme Court has maintained towards 
 
 1 Ableman v. Booth, 21 Howard, 506. 
 'AUema/n v. Booth, 21 Howard. 
 
The Sup-erne Court of the United States. 45 
 
 the States, it will be well to consider several of these judicial 
 interpretations of the theory of our sovereignty. 
 
 In the early case of Chisolm v. Georgia, 1 Chief Justice 
 Jay stated from the federalist point of view, the nature 
 of our Union. He said, " Then it was the present constitu- 
 tion produced a new order of things. It derives its origin 
 immediately 2 from the people, and the people individually are, 
 under certain limitations, subject to the legislative, executive 
 and judicial authorities thereby established. The States are, 
 in fact, assemblages of these individuals who are liable to 
 process." The facts of this case of Chisolm v. Georgia, and 
 its importance, will receive attention in another portion of 
 this paper. 
 
 In the case of MoCulloch v. Maryland, 5 we find stated the 
 opinion of Marshall upon the nature of our government. In 
 beginning, he said : " The conflicting powers of the govern- 
 ment of the Union and of its members as marked in that con- 
 stitution, are to be discussed ; and an opinion given, which 
 may eventually influence the great operations of the govern- 
 ment. No tribunal can approach such a question without a 
 deep sense of its importance, and of the awful responsibility 
 involved in its decision. . . . The convention which promul- 
 gated the constitution was indeed elected by the state legisla- 
 tures, but the instrument when it came from their hands, was a 
 mere proposal, without obligation or pretentions to it. It was 
 reported to the then existing Congress of the United States, 
 with a request that it might " be submitted to a convention 
 of delegates chosen in each State by the people thereof, under 
 recommendation of its legislature for their assent and ratifica- 
 tion. This mode of proceeding was adopted ; and by the 
 conventions, by Congress, and by the state legislatures, the 
 instrument was submitted to the people. They acted upon it 
 in the only way in which they can act safely, effectually, and 
 
 1 2 Dallas, 419. 2 Italics my own. 3 4 Dallas, 316. 
 
46 The Supreme Court of the United States. 
 
 wisely, on such a subject, by assenting in convention. It is 
 true they assembled in their several States, and where could 
 they have assembled? . . . From these conventions the con- 
 stitution derives its whole authority. The government proceeds 
 directly from the people, is " ordained and established " in 
 the name of the people; it is declared to be ordained "in 
 order to form a more perfect union, establish justice, insure 
 domestic tranquillity, and secure the blessings of liberty to 
 themselves and to their posterity." The assent of the States 
 in their sovereign capacity, is implied in calling the conven- 
 tion, and thus submitting that instrument to the people. But 
 the people were at perfect liberty to accept or reject it, and 
 their decision was final. It required not the affirmance of, 
 and could not be negatived by the state governments. The 
 constitution when adopted was of complete obligation, and 
 bound the state sovereignties. . . . The government of the 
 union then, — is emphatically and truly a government of the 
 people. In form and in substance it emanates from them. Its 
 powers are granted by them, and are to be exercised directly 
 on them, and for their benefit." 
 
 In the decisions of Chief Justice Taney, as we should expect, 
 we find the theory of our government looked at from a more 
 States' rights point of view, as for example in such cases as 
 those of Briscoe v. Bank of Kentucky, Scott v. Sanford and 
 in Ableman v. Booth. For instance, see the quotation taken 
 from his opinion in Ableman v. Booth, cited in the early por- 
 tion of this chapter, in which he says of the Supreme Court : 
 " This tribunal, therefore, was erected, and the powers of which 
 we have spoken, conferred upon it, not by the federal govern- 
 ment, but by the people of the States." 1 Taney, in his analysis 
 of our government, never got further back than the State. If 
 we are to accept the reasoning found in Taney's opinions, it 
 was the people of the States, and never the people in their own 
 
 1 Italics my own. 
 
The Supreme Court of the United States. 47 
 
 sovereign capacity who acted throughout the period of con- 
 stitution making from 1765 to 1789. 
 
 In the case of Texas v. White, 1 decided in 1868, Chief Jus- 
 tice Chase, the successor of Taney, in his decision, gives us the 
 last full, and in some respects, the best view we have of our 
 constitution. The facts of this case were these: In 1866, 
 Texas, while still in process of reconstruction, brought suit 
 against White to recover certain bonds held by him, and 
 claimed by Texas. White in his answer claimed that there 
 was no sufficient authority shown to prosecute the suit in the 
 name of Texas ; that Texas by her rebellious courses had so far 
 changed her status as one of the United States, as to be dis- 
 qualified from suing in a federal court. The question was 
 thus brought directly into issue whether the State had ever 
 constitutionally been out of the union ; that is to say, had her 
 ordinance of secession possessed any legal efficiency whatever. 
 In deciding that a State could, by no power of its own, pass a 
 law affecting its relation to the federal union, the court found 
 it necessary to base its decision upon a theory of national sov- 
 ereignty capable of supporting this view. Chief Justice Chase 
 thus supported his opinion. " The union of the States," said 
 he, " never was a purely artificial and arbitrary relation. It 
 began among the colonies, and grew out of a common origin, 
 mutual sympathies, kindred principles, similar interests and 
 geographical relations. It was confirmed and strengthened 
 by the necessities of war, and received definite form and char- 
 acter and sanction from the Articles of Confederation. By 
 these the union was solemnly declared to ' be perpetual.' 
 And when the articles were found to be inadequate to the exi- 
 gencies of the country, the constitution was ordained ' to form 
 a more perfect union.' It is difficult to convey the idea of 
 indissoluble unity more clearly than by these words. What 
 can be more indissoluble if a perpetual union, made more per- 
 
 1 7 Wallace, 750. 
 
48 The Supreme Court of the United States. 
 
 feet, is not? But the perpetuity and indissolubility of the 
 union, by no means implies the loss of distinct and individual 
 existence, or of the right of self-government by the States. 
 Under the Articles of Confederation, each State retained its 
 sovereignty, and every power, jurisdiction and right, not 
 expressly delegated to the United States. Under the consti- 
 tution, though the powers of the States were much restricted, 
 still, all powers not delegated to the United States, nor 
 prohibited to the States, are reserved to the States respectively, 
 or to the people. As we have already had occasion to remark 
 at this time, that the people of each State compose a State 
 having its own government, and endowed with all the func- 
 tion essential to separate and independent existence, and that, 
 without the States in Union, there could be no such political 
 body as the United States. Not only, therefore, can there be 
 no loss of separate and independent autonomy to the States, 
 through their union under the constitution, but it may be not 
 unreasonably said that the preservation of the States and the 
 maintenance of their governments are as much within the 
 design and care of the constitution as the preservation of the 
 Union and the maintenance of the National government. The 
 constitution in all its provisions, looks to an indestructible 
 union, composed of indestructible States." 
 
 It is very interesting to thus place side by side the views 
 held by the different Chief Justices concerning the nature of 
 our constitution. Marshall took the simple Federalist view, 
 that the constitution was formed and adopted by the " people " 
 solely, and hence derives its authority from them ; that the 
 assent of the state government was not required, nor asked, 
 nor given, except impliedly. Chase, in the last decision 
 quoted, went back of this, and upon historical grounds, placed 
 the origin of our nationality before the adoption of the consti- 
 tution. That our national life began with the first attempts 
 of the colonies to engage in united action. " That the national 
 idea springing out of their common origin, interests and 
 necessities, found its first open expression in their resistance to 
 
The Supreme Court of the United States. 49 
 
 Great Britain, it was strengthened by the war, it was triumph- 
 ant in the Declaration of Independence, it was incorporated in 
 the Articles of Confederation, and it was finally perfected by 
 the constitution." : In Taney's decisions we find the States 
 described as originally sovereign and independent, and the 
 constitution as primarily the work of their hands, by which 
 they surrendered a part of their sovereignty. For example, 
 in the case of Scott v. Sandford, 2 he described the States as 
 independent and sovereign even after the adoption of the 
 Articles of Confederation. He said, " But it must be remem- 
 bered that at that time there was no government of the United 
 States in existence, with enumerated and limited powers ; what 
 was then called the United States were thirteen separate, sov- 
 ereign independent States? which had entered into a league or 
 confederation for their mutual protection and advantage, 
 and the congress of the United States was composed of the 
 representatives of these separate sovereignties, meeting together 
 as equals, to discuss and decide on certain measures, which the 
 States, by the Articles of Confederation, had agreed to submit 
 to their decision. But this confederacy had none of the attri- 
 butes of sovereignty in legislative, executive or judicial 
 power." To speak thus of a governing body that had power 
 to ratify general treaties, and to control armies and navies is 
 certainly rather strong. But Taney, while holding a strict 
 construction of our constitution, so as to limit as much as pos- 
 sible the field of operations of the national government, did 
 not in any way seek to lessen the supremacy of the federal 
 government in those powers which he conceived to have been 
 actually granted to it. In one of the ablest and strongest 
 opinions of the court, he is emphatic in the maintenance of the 
 supremacy of federal law, and his opinion is worthy of quota- 
 tion at some length. This opinion was rendered in the case 
 
 Nation, 12, 445. 8 19 Howard. 3 Italics my own. 
 
 4 
 
50 The Supreme Court of the United States. 
 
 of Ablemam, v. Booth, 1 and the facts of the case were these : 
 Booth had been tried by a United States district court for a 
 violation of the Fugitive Slave Law of 1850, and had been 
 found guilty and sentenced to imprisonment. The Supreme 
 Court of the State of Wisconsin, however, claimed jurisdiction 
 over the district court, set aside the judgment, and discharged 
 the prisoner. Not only this, but the state court determined 
 that its decision was final and conclusive upon all the courts 
 of the United States. As Taney said, this was indeed a new 
 proposition that the state courts had a supremacy over the 
 courts of the United States in cases arising under the consti- 
 tution and laws of the United States. After giving a careful 
 exposition of the both necessary and evident supremacy of the 
 federal judicial power over state judiciaries, in cases arising 
 under federal law, Taney continued : " No State, judge or 
 court, after they are judicially informed that the party is 
 imprisoned under the authority of the United States, has any 
 right to interfere with him, or to require him to be brought 
 before them. And, if the authority of the State, in form of 
 judicial process or otherwise should attempt to control the 
 Marshal or other authorized officer or agent of the United 
 States, in any respect, in the custody of his prisoner, it would 
 be his duty to resist it, and to call to his aid any force that 
 might be necessary to maintain the authority of law against 
 illegal interference. No judicial process, whatever form it 
 may assume, can have any lawful authority outside the limits 
 of the jurisdiction of the court or judge by whom it is issued ; 
 and an attempt to enforce it beyond these boundaries, is noth- 
 ing less than lawless violence. Nor is there anything in this 
 supremacy of the General Government, or the jurisdiction of 
 its judicial tribunals, to awaken the jealousy, or offend the 
 
 1 21 Howard, 506. In considering Taney's attitude in this case we may 
 possibly be warranted in remembering that in this particular instance the 
 federal law he was upholding was one passed in the interest of the slave- 
 holding party, with which his sympathies lay. 
 
The Supreme Court of the United States. 51 
 
 natural and just pride of the state sovereignty. Neither 
 this government, nor the powers of which we are speaking 
 were forced upon the States. The constitution of the United 
 States, with all the powers conferred by it on the General 
 Government, and surrendered by the States, was the volun- 
 tary act of the people of the several States, deliberately done 
 for their own protection and safety against injustice from one 
 another. . . . Now it certainly can be no humiliation to the 
 citizen of a republic to yield a ready obedience to the laws as 
 administered by the constituted authorities. On the contrary, 
 it is among his first and highest duties as a citizen, because 
 free government cannot exist without it. Nor can it be 
 inconsistent with the dignity of a sovereign State, to observe 
 faithfully and in the spirit of sincerity and truth the compact 
 into which it voluntarily entered when it became a State of 
 this Union. On the contrary no faith could be more delib- 
 erately and solemnly pledged, than that which every State 
 has plighted to the other States, to support the constitution 
 as it is, in all its provisions, until they shall be altered in 
 the manner which the constitution itself prescribes. In the 
 emphatic language of the pledge required, it is to support 
 this constitution. And no power is more clearly conferred 
 by the constitution and laws of the United States, than the 
 power of this court to decide ultimately and finally, all cases 
 arising under such constitution and laws ; and for that pur- 
 pose to bring here for revision, by writ of error the judgment 
 of a state court where such questions have arisen, and the 
 right claimed under them denied by the highest judicial tri- 
 bunal in the State." 
 
 After the ratification of the constitution had been assured, 
 the opponents of its adoption shifted their ground, and turned 
 their attention to the restriction into as narrow compass as 
 possible the activity of the National Government, the inaugu- 
 ration of which they had been unable to prevent ; and during 
 the first few years of our federal existence, the national judi- 
 
52 The Supreme Court of the United States. 
 
 ciary was subjected to repeated and deliberate assaults by the 
 state legislatures. 
 
 In 1793 the States' rights men received a very severe check 
 by the decision in the case of Chisholm v. Georgia, 1 in which 
 it was held with but one dissentient voice, 2 that, under the 
 clause granting judicial power to the federal courts, a State was 
 liable to suit on the part of a private citizen. The objection 
 raised to this decision was that the States were still sovereign, 
 and as such, were not liable to suit ; and also that this point 
 had been expressly disclaimed by such federalists as Hamilton, 
 Marshall, and Madison in their state conventions. At this 
 time nearly every State of the Union was heavily burdened 
 with debts, and against some, suits had been brought similar to 
 that brought by Chisholm ; and, favored by this decision, 
 many others of this character would undoubtedly be immedi- 
 ately instituted. The legislature of Georgia refused submission 
 to this decision, and passed a statute imposing the penalty of 
 death upon the one who should attempt to enforce the collec- 
 tion of the judgment, Before an attempt at collection was 
 made, however, public opinion had been so aroused, as to 
 enable the Xlth Amendment to the constitution to be ratified, 
 by which it was provided that " The judicial power of the 
 United States shall not be construed to extend to any suit in 
 law or equity, commenced or prosecuted against one of the 
 United States by citizens of another State, or citizens or sub- 
 jects of any foreign State." 3 
 
 1 2 Dallas. 2 Iredell of S. Oar. 
 
 3 Note. — In 1798 in the case of JSollingmiorth v. Virginia (3 Dal., 378, 382), 
 the Supreme Court declared the Xlth Amendment to have been constitu- 
 tionally adopted. 
 
 In recent years, the question of the suability of a state, except by its 
 express consent, was again brought up. Certain creditors of Louisiana, 
 being deterred by the Xlth Amendment from prosecutiug their claims, 
 transferred their evidences of indebtedness, some to the State of New Hamp- 
 shire and some to the State of New York, and these States, as creditors and 
 plaintiffs, brought suit against Louisiana to recover. {N. Hamp. v. La. 
 and N. Y. v. La., 108 17. S., 76.) The court decided that the Xlth Amend- 
 
The Supreme Court of the United States. 53 
 
 In Osborn v. Bank of the United States, 1 the proper inter- 
 pretation of the Xlth Amendment came up, and it was decided 
 that the test to determine whether a suit is against a State, and 
 thus prohibited, is whether the State is a party to the record. 
 
 The Xlth Amendment does not apply to appellate cases. 
 
 The importance of the case of Chisholm v. Georgia, is not to 
 be measured merely by its direct results, for the judgment 
 was never collected, and by the Xlth Amendment it made 
 impossible to prosecute similar suits in the future. It is 
 important on account of the principle of national sovereignty 
 first therein expressed. " It is remarkable," said Chief Justice 
 Jay, in his decision, " that, in establishing it (the constitution) 
 the people exercised their own proper sovereignty, and con- 
 scious of the plenitude of it, they declared with becoming dig- 
 nity : We, the people of the United States, do ordain and estab- 
 lish this constitution. Here we see the people acting as sover- 
 eigns of the whole country, and in the language of sovereignty 
 establishing a constitution by which it was their will the States 
 should be bound, and to which the state constitutions should 
 
 ment could not be thus evaded. Also within the last few years the Vir- 
 ginia coupon cases have been decided, which involved the principle of the 
 suability of a State. The Virginia legislature, some years ago, passed an 
 act making the interest coupons on her bonded indebtedness receivable for 
 state taxes. Since then she has endeavored to evade the execution of this 
 law, by various hindering acts. Varying decisions have been given in 
 these cases, the last of which is against Virginia. 
 
 Also in connection with this point: "the Amendment simply provides 
 that no suit shall be commenced or drosecuted against a State. The State 
 cannot be made a defendant to a suit brought by an individual. But it 
 remains the duty of the courts of the United States to decide all cases 
 brought before them by citizens of one State against citizens of a different 
 State where a State is not necessarily a defendant." ( U. S. v. Peters, 5 
 Cranch, 136.) 
 
 Also : " When a government becomes a partner in any trading company, 
 it divests itself, so far as concerns the transactions of that company, of its 
 sovereign character, and takes that of a private citizen." {Bank of U. S. v. 
 Planter's Bank of Oa., 9 Wheat., 904. 
 
 1 9 Wheat., 852. 
 
54 The Supreme Court of the United States. 
 
 be made to conform." In quoting this Cooley adds : "And 
 the deduction was irresistible ; the sovereignty of the people 
 was in the people of the nation, and the residuary sovereignty 
 of each State in the people of each State." l 
 
 There as yet existed no authoritative interpretation by the 
 Supreme Court of its power to declare an act of a state legis- 
 lature void for repugnance to the constitution of the United 
 States. The power so to control the national legislature had 
 been declared by a circuit court as early as 1792, and by the 
 Supreme Court in 1803. In Calder v. Bull, 2 in 1798, a state 
 law was contested in the Supreme Court, but was held 3 consti- 
 tutional and thus the question was not put to a direct test. 
 
 The first case, in the decision of which the Supreme Court 
 found itself called upon to annul the legislative act of a State, 
 was that of United States v. Peters* decided in 1809, a litigation 
 raising out of an old prize case of the Confederacy. In this 
 case the district court of Pennsylvania had given judgment to 
 one Olmstead. The legislature of Pennsylvania, however, 
 passed an act denying the jurisdiction of the court, and con- 
 sequently the validity of the judgment, and authorizing the 
 Governor to resist its collection. The case was brought before 
 the Supreme Court by the Attorney-General, and the act of 
 Pennsylvania declared void, and the district court ordered to 
 serve the execution. Upon attempting to do so the sheriff 
 found himself confronted by a brigade of Pennsylvania State 
 militia, and was forced to summon a posse comitatus. The 
 
 1 Constitutional History as Seen in the Development of Its Law, p. 48. 
 
 ' 3 Dallas, 386. 
 
 3 Note. — In this decision Justice Chase stated what has since been the 
 invariable principle of the court in regard to the repugnance of a state law 
 to the state constitution. He said : " Without giving an opinion at this 
 time, whether this court has jurisdiction to decide that any law made by 
 Congress contrary to the constitution of the United States, is void ; I am 
 fully satisfied that this court has no jurisdiction to determine that any law 
 of any state legislature contrary to the constitution of such State, is void." 
 
 4 5Cranch, 136. 
 
The Supreme Court of the United States. 55 
 
 Pennsylvania legislature now gave way, and actual conflict 
 was averted. In his opinion, the Chief Justice was emphatic 
 in his condemnation of the attitude taken by Pennsylvania in 
 this case. Said he : " If the legislatures of the several States 
 may, at will, annul the judgments of the United States, and 
 destroy the rights acquired under these judgments, the con- 
 stitution itself becomes a solemn mockery ; and the nation is 
 deprived of the means of enforcing its laws by the instru- 
 mentality of its own tribunals." 
 
 During the early years of our constitutional government, 
 none of the States were so persistent in their opposition to the 
 federal government, and especially towards the federal judi- 
 ciary, as was the State of Virginia. The first assault had 
 been made by Pennsylvania in her resistance to execution in 
 the prize case of which we have spoken ; but Virginia took 
 up the contest in a more legal, yet more serious way. It will 
 be remembered that the twenty-fifth clause of the judiciary 
 act of 1789 provided that in three classes of cases an appeal 
 might lie from the highest courts of the States to the Supreme 
 Court ; and that the constitutional grounds for the grant of this 
 power to the federal judiciary rested upon implication and not 
 direct donation. The constitutionality of this section did not 
 remain unchallenged by the States, jealous of the independence 
 of their powers. 
 
 In 1813 the Court of Appeals of the State of Virginia 
 unanimously denied this appellate jurisdiction of the Supreme 
 Court of the United States, and declined to obey the mandate 
 of that court in the case of Martin v. Hunter's Lessee. 1 The 
 following is the opinion rendered by the Virginia court : 
 " The court is unanimously of the opinion that the appellate 
 power of the Supreme Court of the United States does not 
 extend to this court under a sound construction of the United 
 States ; that so much of the 25th section of the act of Congress, 
 to establish the judicial courts of the United States, as extends 
 
 1 1 Wheat., 303. 
 
56 The Supreme Court of the United States. 
 
 the appellate jurisdiction of the Supreme Court of the United 
 States to this court, is not in pursuance of the constitution of 
 the United States." 
 
 This was certainly a serious assault, and one to be met with 
 the firmest resistance, if the federal judiciary was to be sus- 
 tained in the exercise of a power so essential to the mainten- 
 ance of the integrity of its strength. In one of the most 
 weighty decisions in the history of the court, Justice Story 
 proceeded to vindicate the Supreme Court in the exercise of 
 this appellate power. " Perhaps it is not too much to affirm," 
 said Story, " that upon their right decision rest some of the 
 most solid principles which have hitherto been supposed to 
 sustain and protect the constitution itself." Then followed 
 an elaborate argument showing that though not expressly 
 given by the constitution, this appellate power of the Supreme 
 Court was certainly and necessarily contemplated by the 
 framers of our government, as shown in Article III, and 
 Article VI already cited : and demonstrating how futile 
 would be the attempt to maintain the supremacy and homo- 
 geneity of federal law, without this power. 
 
 One would think that the firmness and explicitness of this 
 decision would have deterred parties from a further resistance 
 to this jurisdiction; but in 1821 the point was again contested, 
 and by the same State, Virginia, in the case of Cohens v. 
 Virginia. 1 
 
 In this case there were raised, however, certain other 
 points of such constitutional importance, and we can profit by 
 a consideration of the opinion of Marshall, who delivered the 
 decision of the court. In this case, the Cohens were indicted 
 by a state court for selling lottery tickets. Their defense was, 
 that the lottery had been established by federal law, and as a 
 consequence, the State of Virginia had no control over the 
 case. Upon appeal to the Supreme Court of the United 
 States, the counsel for Virginia in his motion to dismiss made 
 
 1 6 Wheat., 264. 
 
The Supreme Court of the United States. 57 
 
 the following points : First, that the State was a defendant ; 
 second, that no writ of error lies from the Supreme Court to 
 a state court ; and third, that the judiciary act did not grant 
 this jurisdiction. The conclusion from Virginia's argument 
 was, then, that there could be cases of violation of federal law 
 in which the federal government had not the power to apply 
 a corrective. As Marshall said : " They maintain that the 
 nation does not possess a department capable of restraining 
 peacefully, and by authority of law, any attempts which may 
 be made, by a part against the legitimate powers of the whole ; 
 and that the government is reduced to the alternative of sub- 
 mitting to such attempts, or of resisting them by force." In 
 his answer to such a doctrine as this, Marshall gives us an 
 opinion of such clear logic, and matchless argument, that it 
 would be scarcely amiss to insert it here in full, and let it 
 stand as one of the best, if not the best interpretation the rela- 
 tion between the powers of the nation and its constituent 
 States, has received at the hands of a federal tribunal. Space 
 demands that only selections shall be given. 
 
 First, in answer to the point that the jurisdiction of the 
 court is excluded by the character of the parties, one of them 
 being a State and the other a citizen of that State. Said Mar- 
 shall : " The jurisdiction of the court, then, being extended by 
 the letter of the constitution to all cases arising under it, or 
 under the laws of the United States, it follows that those who 
 would withdraw any case of this description from that juris- 
 diction must sustain the exemption they claim on the spirit 
 and true meaning of the constitution, which spirit and true 
 meaning of the constitution must be so apparent as to overrule 
 the words which its framers have employed. . . . From this 
 general grant of jurisdiction no exception is made of those 
 cases in which a State may be a party. When we consider 
 the situation of the government of the Union, and of a State, 
 in relation to each other ; the nature of our constitution ; the 
 subordination of the state governments to that constitution ; the 
 great purpose for which jurisdiction over all cases arising 
 
58 The Supreme Court of the United States. 
 
 under the constitution and laws of the United States, is con- 
 fided to the judicial department; are we at liberty to insert in 
 this general grant, an exception to those cases in which a State 
 may be a party? Will the spirit of the constitution justify 
 this attempt to control its words ? We think it will not. We 
 think a case arising under the constitution or laws of the 
 United States, is cognizable in the courts of the Union, who- 
 ever may be parties to that case." Continuing, he showed 
 the Xlth Amendment to be inapplicable to the case. He said : 
 " It is then the opinion of the court, that the defendant who 
 removes a judgment rendered against him by a state court 
 into this court for the purpose of reexamining the question, 
 whether that judgment be in violation to the constitution or 
 laws of the United States, does not commence or prosecute a 
 suit against a State. ... It is then not within the amend- 
 ment, but is governed entirely by the constitution as origin- 
 ally framed, and we have already seen, that in its origin, the 
 judicial power was extended to all cases arising under the 
 constitution or laws of the United States, without respect to 
 parties." 
 
 Bearing upon the second point made by Virginia, that the 
 appellate jurisdiction of the court could not be exercised over 
 the judgment of a State court, Marshall said : " We think 
 that in a government acknowledged supreme with respect to 
 objects of vital interest to the nation, there is nothing incon- 
 sistent with sound reason, nothing incompatible with the 
 nature of government, in making all its departments supreme, 
 so far as respects those objects, and so far as is necessary to 
 their attainment. The exercise of the appellate power of 
 those judgments of the state tribunals which may contravene 
 the constitution or laws of the United States, is, we believe, 
 essential to the attainment of those objects." Before this he had 
 said : " There is certainly nothing in the circumstances under 
 which our constitution was formed; nothing in the history 
 of the times, which would justify the opinion that the con- 
 fidence reposed in the States was so implicit as to leave in 
 
The Supreme Court of the United States. 59 
 
 them and their tribunals the power of resisting or defeating 
 in the form of law, the legitimate measures of the Union. 
 The requisitions of Congress, under the Confederation, were 
 as constitutionally obligatory as the laws enacted by the 
 present Congress. That they were habitually disregarded, 
 is a fact of universal notoriety. With the knowledge of this 
 fact, and under its full pressure, a convention was assembled 
 to change the system." Further, Chief Justice Marshall 
 quoted from the Federalist at length, in which he was une- 
 quivocally sustained on this point. 
 
 To the point that had been raised by Virginia, that such 
 a power, if sustained, would result in an ultimate complete 
 consolidation of the States, Marshall in a few words showed 
 its improbability, if not its absurdity. "A complete consoli- 
 dation of the States, so far as respects the judicial power," 
 said he, " would authorize the legislature to confer on the 
 federal courts appellate jurisdiction from the state courts in 
 all cases whatsoever. The distinction between such a power, 
 and that of giving appellate jurisdiction in a few specified , 
 cases, in the decision of which the nation takes an interest, is 
 too obvious not to be perceived by all." 
 
 The cases of Ableman v. Booth 1 and McCulloch v. Mary- 
 land are other cases important in connection with the account 
 of the efforts made by the States to interfere with and hinder 
 federal action. Both of these cases have been previously 
 referred to, and the circumstances of first one described. The 
 case of McCulloch v. Maryland 2 arose from the attempt on 
 the part of Maryland to prevent the operation, within her 
 borders, of the federal institution, the Second United States 
 Bank. This she endeavored to do, by taxing out of existence 
 the branch bank which had been located on her territory. 
 f f _ We turn now to a consideration of other decisions of the 
 Supreme Court regulating other points of contact between 
 the National and State governments. 
 
 1 21 Howard, 506. * 4 Wheat, 316. 
 
60 The Supreme Court of the United States. 
 
 The restriction laid upon States regarding the violation of 
 contracts, has given rise to important cases, the decisions in 
 which, while of the gravest importance in constitutional law, 
 and in their economic bearings, need not detain us long, as in 
 them there were determined no novel points of especial 
 importance bearing upon the proper relations to be main- 
 tained by the States towards the Union. The decisions have 
 turned almost entirely upon the question of what constitutes 
 a contract. In Fletcher v. Peek 1 decided in 1810, a case 
 arising in connection with the "Yazoo Frauds," a state law 
 was first " broken," for being a violation of the sanctity of 
 contracts. The case is also important as being the second 
 instance in which a state law was voided by the Supreme 
 Court. The proper meaning of the word contract was next 
 discussed in New York v. Wilson, and again in Ten-it v. 
 Taylor. 2 That case, however, which is best known in con- 
 nection with this subject, is that of Dartmouth College v. 
 Woodward. 3 It derives its importance, however, more from 
 the prominence of the parties involved, and the thoroughness 
 with which the question was discussed, than from the settle- 
 ment of any really new points of controversy. The decision 
 turned entirely upon the proper interpretation of the word 
 contract. 4 
 
 In Gibbons v. Ogden, 5 it was decided that the State of New 
 York, had, though probably unintentionally, entered a field of 
 jurisdiction already exclusively entered by the federal govern- 
 ment; namely, the regulation of inter-state commerce. The 
 decision of this case involved a construction of that clause 
 of the constitution which gives to Congress the power "to 
 
 1 6 Cranch, 128. ! 9 Cranch. 3 4 Wheat., 518. 
 
 * Note. — Interesting in connection with this point, but for the further 
 mention of which there is not space, are the cases : Providence Bank v. 
 Billings (4 Pet., 514), Sturges v. Orovminshield (4 Wheat., 122), and the 
 Virginia Coupon Cases. 
 
 6 9 Wheat., 1. 
 
The Supreme Court of the United States. 61 
 
 regulate commerce with foreign nations and among the several 
 States, and with the Indian tribes." It was herein determined 
 that " the power to regulate commerce includes the power to 
 regulate navigation, and does not stop at the external bound- 
 aries of a State." " Moreover, the power of Congress to regu- 
 late commerce, either with foreign nations or among the States, 
 does not stop at the jurisdictional lines of the State, but must 
 necessarily be exercised within their territorial jurisdiction, 
 and must include every case of commercial intercourse which 
 is not a part of the purely internal commerce of a single 
 State." 
 
 The recent Inter-State Commerce Act is the latest example 
 .of legislative activity based on the principles of this decision. 
 
 In 1886 in the case of Wabash Railway Co. v. Illinois, 1 
 Justice Miller said : " This clause giving to Congress the 
 power to regulate commerce among the States, and with 
 foreign matters, as this court has said before, was among the 
 most important of the subjects which prompted the formation 
 of the constitution. And it would be a very feeble and 
 almost useless provision, if the States be allowed to impose 
 any restrictive regulation interfering or seriously embarrassing 
 this commerce." By this decision, an Illinois statute making 
 a different rate for freight carried outside of the State from 
 the rate charged for freight wholly within the State, was 
 held an interference with inter-state commerce, and therefore 
 unconstitutional. This principle, has this year received an 
 application by the Supreme Court in the case of Leisky & Co., 
 v. Hardin, that is of considerable importance, and has created 
 much comment. In this case it was held (Gray, Harlan and 
 Brewer dissenting) that the law of Iowa which forbade the 
 sale in the "original packages" of liquor imported from 
 another State, was unconstitutional, being a restriction on 
 inter-state commerce. The result of this decision will be, of 
 course, to seriously injure the state prohibition cause. What 
 
 ^WS U.S. Keports, 557. 
 
62 The Supreme Court of the United States. 
 
 will be the full consequences of this decision it is as yet too 
 soon to see. 
 
 An important question settled by the cases of the Cherokee 
 Nation v. Georgia, 1 Wooster v. Georgia, 2 and United States v. 
 Kagoma? was the status of the Indian tribes in their relation 
 to the States and to the United States. The result of the 
 decisions in these cases was to prohibit the States from inter- 
 ference with the Indians as long as they maintained their 
 tribal relations. The importance of the first two cases in 
 politics, and in connection with the Executive will be 
 adverted to, later on. As given in United States v. Kagoma, 
 the status of the Indian within our State borders was, and 
 remains thus defined : "While the government of the United 
 States has recognized in the Indian tribes hithertofore a state 
 of semi-independence and pupilage, it has the right and 
 authority instead of controlling them by treaties, to govern 
 them by acts of Congress, they being within the geographical 
 limits of the United States, and being necessarily subject to 
 the laws which Congress may enact for their protection and 
 for the protection of the people with whom they come in con- 
 tact. The States have no such power over them as long as 
 they maintain their tribal relations." 
 
 The attitude of the Supreme Court towards the States in 
 construction of the Xlllth and XlVth Amendments is 
 worthy of note. In the proper application of the additional 
 restrictions placed upon the States by these additions to the 
 constitution, the services of the Supreme Court as a check, 
 now not to undue State action, but as a protection to the 
 States against too great federal interference, were conspicu- 
 ous. As, in the early years of our constitutional history, the 
 Supreme Court had been a potent factor in protecting the 
 then weak Union against the more powerful and aggressive 
 States, so now it saved the victorious Unionists from being 
 hurried in their excitement and passion to a too great move- 
 
 1 5 Peters, 1. 2 6 Peters, 3] 5. '118 U. S., 375. 
 
The Supreme Court of the United States. 63 
 
 ment in the opposite direction, towards centralization. As a 
 conservative element in our constitutional development, the 
 court showed itself as useful as a constructive power. Under 
 that clause of the XlVth Amendment which provides that 
 "No State shall make or enforce any law which shall abridge 
 the privileges or immunities of citizens of the United States, 
 nor shall any State deprive any person of life, liberty or 
 property, without due process of law, nor deny to any person 
 within its jurisdiction the equal protection of the laws," 
 attempts were made to obtain such interpretations as would 
 justify the federal government in interfering with the domestic 
 concerns of the States. The decision rendered in 1873 in the 
 Slaughter House Cases, 1 put an end to all attempts or hopes 
 in this direction. The facts of these cases were these : The 
 legislature of Louisiana passed an act regulating the slaugh- 
 tering of animals in the City of New Orleans. The butchers 
 considered this an infringement upon their rights and brought 
 suit in the federal courts, claiming protection under the 
 XlVth Amendment. In deciding the case in favor of the 
 validity of the act of the Louisiana legislature, Justice Miller, 
 who rendered the opinion of the court, said : "We do not see 
 in these amendments any purpose to destroy the main features 
 of the general government. Under the pressure of all the 
 excited feelings growing out of the war our statesmen have 
 still believed that the existence of the States with powers for 
 domestic and local government, including the regulation of 
 civil rights — the rights of person and property — was essential 
 to the perfect workings of our complex form of government, 
 though they have thought fit to confer additional limitations 
 upon the States, and to confer additional power on that of the 
 United States." Of the nine justices then upon the bench, 
 four dissented from the opinion rendered by the other five. 
 The decision, though subject to much adverse criticism at the 
 time, has since been generally accepted as correct, and the 
 
 1 16 Wall., 37. 
 
64 The Supreme Court of the United States. 
 
 principle is now considered as well established, that, with the 
 exception of the restrictions upon infringement of the rights 
 of the colored race, no new limitations were laid upon the 
 States by the last three Amendments. 
 
 The conditions under which appeals lie from the state 
 courts to the Supreme Court of the United States, as pro- 
 vided for in the twenty-fifth section of the Judiciary Act, 
 have received attention, but there still remains for considera- 
 tion that class of cases in which the state and federal courts 
 have concurrent jurisdiction. 
 
 In the case of Martin v. Hunter's Lessee, 1 Justice Story, in 
 his opinion found it necessary to consider the subject of the 
 distinction between those cases in which the United States 
 courts have necessarily exclusive jurisdiction, and those in 
 which the state courts may exercise concurrent jurisdiction. 
 The points made in this decision were these. Congress cannot 
 vest any portion of the judicial power of the United States, 
 except in courts ordained and established by itself. Congress 
 cannot lawfully refuse to create a Supreme Court, and to vest 
 in it the whole constitutional jurisdiction. Congress is also 
 bound to create some inferior courts in which to vest all the 
 jurisdiction, which under the constitution is exclusively vested 
 in the United States, and of which the Supreme Court cannot 
 take original jurisdiction. There is a distinction between the 
 class of cases arising under the constitution, laws and treaties 
 of the United States ; cases affecting ambassadors, other pub- 
 lic ministers and consuls, and cases of admiralty and mari- 
 time jurisdiction ; and the class embracing all the other sub- 
 jects of national cognizance. In respect to the first class, the 
 constitution imperatively extends the judicial power, either in 
 an original or appellate form, to all cases ; and in the second 
 class of controversies, it leaves it to Congress to qualify the 
 jurisdiction, original or appellate, in such manner as public 
 policy may dictate. The judicial power of the United States 
 
 1 1 Wheat., 304. 
 
The Supreme Court of the United States. 65 
 
 is unavoidably, in some cases, exclusive of all State authority ; 
 and in all others may be made so at the election of Congress. 
 " It is not the mere existence of the national power, but its 
 exercise, which is incompatible with the exercise of the same 
 power by the States." l No part of the criminal jurisdiction 
 of the United States can, consistently with the constitution, 
 be delegated to state tribunals. The admiralty and maritime 
 jurisdiction is of the same exclusive cognizance. It is only in 
 those cases where, previous to the formation of the constitution, 
 state tribunals possessed jurisdiction independent of national 
 authority, that they can now constitutionally exercise a con- 
 current jurisdiction. 
 
 In the valuable essay by D. H. Chamberlain, 2 the topic we 
 are now considering is treated, and it is with considerable 
 guidance from his paper that I have written the last few 
 pages of this chapter. After mentioning the points made in 
 the case of Martin v. Hunter's Lessee, and in other cases, he 
 thus sums up the result. " The point which has now been 
 reached," he says, " enables us to make the general statement 
 of the place of the state judiciary in the American political 
 system : (1) The judicial power of the several States under 
 our constitutional system, extends to all matters and cases 
 whatsoever of judicial cognizance, which are not vested by 
 the constitution in the United States, or prohibited by it to 
 the States. (2) Of the matters and cases embraced in the 
 grant by the constitution of judicial power to the United 
 States, the judicial power of the State extends, concurrently 
 with that of the United States, to all matters and cases which 
 do not, by their nature, fall exclusively within the prescribed 
 limits of the judicial power of the United States, and of which 
 the state judiciary may take jurisdiction agreeably to its own 
 constitution and powers under the state constitution and laws. 
 
 1 Quoted from Stwges v. Orovminsfield, 4 Wheat. 
 
 2 Const. Hist, of U. 8., as seen in the Development of Its Law, Chap. V. 
 See Federalist, 82, as giving much the same view. 
 
 5 
 
66 The Supreme Court of the United States. 
 
 In a word, the jurisdiction of the state judiciary covers all 
 matters which may be the subjects of judicial cognizance, 
 except such as are by their nature, or by the express terms of 
 the constitution, or of act of Congress, placed within the 
 exclusive jurisdiction of the United States, or excluded from 
 the jurisdiction of the state courts by the state constitution or 
 laws." l 
 
 As we have already learned, this concurrent jurisdiction in the 
 state courts was recognized in the Judiciary Act of 1789, and 
 provision made by which certain suits might be removed by the 
 defendant from state courts to courts of the United States. This 
 power has since been widened until now it covers all cases which 
 might originally have been brought in a federal court ; and the 
 privilege of such removal is allowed to the plaintiff as well as 
 to the defendant. 
 
 In exercising their jurisdiction, the federal courts are fre- 
 quently called upon, by the character of the parties involved, 
 to adjudicate upon the same subject and legal points that the 
 state courts have decided in cases of their own. In such 
 cases the federal courts follow the statute law of the State, 
 and the former decisions of the state courts. The Judiciary 
 Act provided that "The laws of the several States, except 
 where the constitution, treaties, or statutes of the United 
 States otherwise require or provide, shall be regarded as rules 
 of decision in trials at common law, in the courts of the 
 United States, in cases where they apply." This subject is 
 discussed at considerable length by Mr. D. H. Chamberlain, 
 who, as a result of his examination, says: "The rule to be 
 drawn from the cases now examined as well as from numer- 
 ous other cases which have arisen in the Supreme Court of 
 the United States, seems to be well settled and defined, and 
 may be thus stated : (1) The statutes of a State and the con- 
 struction put upon them by the highest court of a State are 
 binding and conclusive upon the courts of the United States 
 
 1 P. 254. 
 
The Supreme Court of the United States. 67 
 
 in all cases where such statutes so construed are not in conflict 
 with the constitution of the United States, and where such 
 decisions can be regarded as the settled, fixed, and received 
 law of the State; (2) but that whenever, in the judgment of 
 the United States courts, state statutes as construed by state 
 courts are in conflict with the constitution of the United 
 States, or, (3) whenever the decisions of the state courts are 
 conflicting, so that any specified decision or decisions of the 
 state courts cannot fairly be regarded as expressing the settled 
 law of the State, the United States courts are not bound by 
 such statutes or decisions. This rule with these limitations 
 seems to be well settled, and to have been adhered to with 
 somewhat unusual consistency by the Supreme Court of the 
 United States." 1 It might be added also that no state law 
 can be adjudged void for being in violation of the constitu- 
 tion of that State. The determination of that point belongs 
 to the courts of the State itself. 2 
 
 In conclusion. When one looks over our dual set of courts, 
 whose mutual relationships and interdependencies it has been 
 the purpose of this chapter to explain, he can scarcely be 
 blamed for saying to himself " surely we have here invented 
 for ourselves a complex machine for the adjustment of our 
 disputes." Considered as a mere machine for the settlement 
 of disputes, it is a complicated apparatus, yet if what has been 
 written has at all served its purpose, we see the theory of 
 their construction and working to be simple and clear. The 
 theory of our judiciaries is in exact harmony with the theory 
 of our whole federal union. The State is essential to the 
 Union, and the Union is essential to the existence of the 
 States. Each supplements and assists the other. Within 
 their own bounds each is all powerful. It is just as much 
 so with the judiciary, as it is with the other branches of the 
 government. The field of activity is divided between state 
 and federal courts upon broad and intelligible principles, and 
 
 1 P. 271. 2 Calder v. Bull, 3 Dallas, 386. 
 
68 The Supreme Court of the United States. 
 
 each recognizes its own limitations. Excepting the first few 
 years of our federal existence, when the federal machinery 
 had not yet become well fixed and smooth running, there 
 have been surprisingly few serious conflicts between the two 
 systems of courts. It is the very delicacy of the machinery, 
 and the political ability of Americans to appreciate these deli- 
 cacies of constitutional adjustments, that make the judicial 
 portion of our system work so smoothly, and make this feat- 
 ure of our government the object of wonder, as well as of 
 admiration of foreigners. 
 
t 
 
 CHAPTEE VII. 
 The Supreme Court and the Executive. 
 
 We turn now to a consideration of the relation of the high- 
 est interpreter of our laws to that branch of our government 
 to which is charged the duty of executing those laws. 
 
 The fundamental proposition usually maintained regarding 
 our national government is, that each of its three branches is, 
 in its action, separate from and independent of the other two. 
 The extent to which this is actually and practically the case 
 will, it is hoped, appear in the following discussion. 
 
 Complete independence of the three branches of a govern- 
 ment nowhere exists, and necessarily cannot. No government 
 can exist with complete independence of the executive, judi- 
 cial, and legislative functions. They may be separate, so far 
 as being vested in different hands is concerned, but in their 
 operations they must depend for the efficiency of their actions 
 upon the cooperation and aid of each other. What would be 
 the result (especially in a government like ours, with limita- 
 tions of power, and the different branches of government 
 frequently in the hands of persons differing in political prin- 
 ciples) if laws were made with no guarantee or certainty that 
 they would be executed ; or if courts rendered decisions with 
 no assured prospect that they would be applied if they were 
 displeasing to the executive ; and finally, if Congress should 
 continue to legislate without any reference to the interpreta- 
 tion which the constitution had received at the hands of the 
 judiciary ? It would be anarchy. 
 
 69 
 
70 The Supreme Court of the United States. 
 
 The main point upon which the maintenance of the pro- 
 position of the independence of the powers of our federal 
 government rests, is in reference to the freedom of action of 
 the executive. The problem resolves itself at once into the 
 question : does the right of interpreting the constitution in a 
 final and authoritative manner, rest with the whole United 
 States as a body politic, that is with all the departments ; or 
 is this duty vested in the hands of one of them alone, that is 
 to say, the judiciary? 
 
 For convenience this topic may be discussed under the fol- 
 lowing heads : (1) Has the President the right to veto an act 
 of Congress merely because he believes it to be an unconstitu- 
 tional measure ? Or, to put it still stronger, has the President 
 the right to exercise his veto upon this ground, even though a 
 similar measure has previously obtained a construction at the 
 hands of the supreme judiciary, and been declared constitu- 
 tional ? 
 / (2) Has the President the right to refuse to execute a law, 
 passed during the term of a predecessor, or over his veto, 
 because he deems it unconstitutional ? 
 
 (3) Has the President the right to decline to enforce a judg- 
 ment of a federal court, because he believes such decision to 
 be not in harmony with the principles of the constitution ? 
 
 (1) Has the President the right to veto an act of Congress 
 because he believes it to be an unconstitutional measure ? He 
 has. The only objection that has been raised to this affirma- 
 tive answer is that in thus acting the President is arrogating to 
 himself judicial functions ; that it is the duty of the judiciary 
 alone to pass upon the constitutionality of laws. The objec- 
 tion is not well made, however. In placing a veto upon a 
 congressional enactment, the President is exercising, not a 
 judicial, but a legislative function. His veto is of the nature 
 of a powerful vote, and his decision as to the way his vote is 
 to be cast must be formed from his own views and opinions. 
 The constitution gives him the power and he has a right to use 
 it ; indeed, it is his duty so to use it. But has he the right to 
 
The Supreme Court of the United States. 71 
 
 use his veto upon the sole ground of unconstitutionality, when 
 a measure of similar character has received previous interpre- 
 tation by the Supreme Court, and has been sustained? I 
 think that he has. I cannot see that his constitutional right 
 or even duty of thus using his veto power has been at all 
 impaired by the manner in which any previous act has been 
 treated. In 1832 Jackson vetoed the bill providing for a 
 recharter of the National Bank. This he did mainly on the 
 ground of unconstitutionality, notwithstanding the fact that in 
 the case of McCidlooh v. Maryland this institution had been 
 carefully examined by the Supreme Court and pronounced 
 constitutional. In support of his action, Jackson, in his veto 
 message said : " The Congress, the Executive, and the Court, 
 must each for itself be guided by its own opinion of the con- 
 stitution. Each public officer who takes an oath to support 
 the constitution, swears that he will support it as he under- 
 stands it, and not as it is understood by others. It is as much 
 the duty of the House of Representatives, of the Senate, and 
 of the President, to decide upon the constitutionality of any 
 bill or resolution which may be presented to them for passage 
 or approval, as it is of the Supreme Court when it may be 
 brought before them for a judicial decision. The opinion of 
 the judges has no more authority over Congress than the 
 opinion of Congress has over the judges, and on that point the 
 President is independent of both." Jackson was no lover of 
 the Supreme Court, and in this instance certainly stated the 
 case strongly, but in his action he was undoubtedly correct. 1 
 Whether he acted wisely, or even with proper respect towards 
 the other branches of the government is another question. 
 
 (2) Has the President the right to refuse to execute a law, 
 passed during the term of a px*edecessor, or over his veto, 
 because he deems it unconstitutional ? Here we come to an 
 entirely different question. In this case we are considering the 
 attitude of the President, not towards a measure in process of 
 
 1 Von Hoist holds a contrary view. Constitutional History, I, 46. 
 
72 The Supreme Court of the United States. 
 
 enactment, as is the case when the veto is exercised, but 
 towards a bill that has passed through all the constitutional 
 forms of enactment, and become a law. The question we 
 have propounded in this instance is not an easy one to answer, 
 and contradictory opinions are held regarding it. A care- 
 ful consideration of all the theoretical and practical points 
 involved, leads me to the opinion that the executive has not 
 this power of defeating the will of the people or of the legis- 
 lature as embodied in law. The reasons for maintaining the 
 contrary opinion, as usually stated are these: The constitu- 
 tion of the United States is the supreme law of the President 
 as well as of the private citizen. It is his duty to "take care 
 that the laws be faithfully executed," but he is also sworn to 
 "preserve, protect and defend the constitution," and this he 
 must do upon his own interpretation of the constitution, and 
 not upon that of others. The constitution is but a law of high 
 degree, and is therefore one of the very laws that he must 
 take care are faithfully executed. Says one writer :* "If the 
 President must execute all laws, he must execute an ex post 
 facto law or any other law flying in the teeth of the constitu- 
 tion ; a partisan statute passed over his veto can rob him of 
 the right to be commander-in-chief, to nominate or remove 
 from office, or of any other right expressly conferred upon 
 him ; and it is at once evident that in these cases Congress 
 would be quite as plainly taking away from the President the 
 power which the constitution has expressly given. A two-thirds 
 majority could alter at will many important provisions of the' 
 constitution, and the members could only be called to account 
 at a reelection. That instrument in these cases would not 
 be self-supporting* and would furnish none of those checks 
 of which we have all heard so much. But if the contrary 
 view is true, the check system comes into perfect play ; for then 
 the President's right to refuse his assistance to an unconstitu- 
 tional law will check Congress, while the risk of impeachment 
 
 1 American Law Eeview, 23, 375. 
 
The Supreme Court of the United States. 73 
 
 will check the President." This is the strongest statement of 
 this side of the question that I have seen. What are the fal- 
 lacies ? 
 
 In the first place, the President does not stand upon the 
 same footing as regards the constitution, as does the private 
 citizen. The President is an agent selected by the people, for 
 the express purpose of seeing that the laws of the land are 
 executed. If upon his own judgment he refuse to execute a 
 law and thus nullifies it, he is arrogating to himself legisla- 
 tive functions. If this right were allowed, then would laws 
 have but an advisory, recommendatory character, depending 
 for power upon the good-will of the President. That there 
 would be danger that the legislature might by a chance 
 majority, or through the influence of sudden great passion, 
 legislate unwisely or unconstitutionally, was foreseen by those 
 who framed our form of government, and the provision was 
 made that the President might at his discretion use a veto, 
 but (and here is the point), this was the entire extent to 
 which he was allowed to go in the exercise of a check upon 
 legislation. It was expressly provided that if after his veto, 
 two-thirds of the legislature should again demand that the 
 measure become a law, it should thus be, notwithstanding the 
 objection of the Chief Executive. Surely there is here left 
 no further constitutional right on the part of the President to 
 hinder the operation of a law. 
 
 It is the duty or privilege of a private citizen to refuse 
 obedience to a law, if, upon careful consideration and investi- 
 gation he considers it to be unconstitutional, but he does so at 
 his own risk, and if he is wrong his punishment will follow. 
 Then too, only his particular interest is directly involved. 
 But, says the objector, the President also refuses his obedience 
 at his own risk, namely, the danger of impeachment and pos- 
 sible subsequent civil or criminal prosecution. The case is 
 different. In the first place, a refusal on his part to execute 
 the law nullifies it in all its applications for all people ; and 
 in the second place, impeachment is not a check. As an 
 
74 The Supreme Court of the United States. 
 
 instrument for checking unconstitutional action on the part 
 of the President, impeachment has been found too cumber- 
 some. If, in the case of the extreme opposition and contest 
 between both Houses of Congress and President Johnson, an 
 impeachment was not successful, we must admit that as a 
 means of future restraint upon the Chief Executive it will 
 not be greatly feared. 
 
 But is the President to execute patently unconstitutional 
 laws, if passed by the legislature ? Yes. As has been said, 
 his discretion lies in the exercise of his veto power. If this 
 is of no avail, then he has no further discretion but must 
 obey. If the laws are patently unconstitutional, they will be 
 soon contested by private individuals, and a decision obtained 
 at the hands of the Supreme Court. After decision upon 
 them by this high court the case will be changed. This leads 
 us to the next question. 
 
 (3) Has the President, or here we make it more general ; 
 have any of the officers of the government, the right to refuse 
 obedience to a judgment of the Supreme Court, because they 
 believe such judgment to be based upon an incorrect inter- 
 pretation of the constitution? Here we have the case of an 
 enactment having necessarily not only the favoring view 
 of the Congress, but the sanction and support of the highest 
 judicial tribunal of the land. I can see no shadow of consti- 
 tutional right on the part of a public official to refuse to exe- 
 cute a judgment of a federal court. This case is stronger than 
 the former one by the additional support of the judiciary. 
 To refuse now to execute the command of the court is to 
 assume the judicial power of a court of appeals as well as 
 legislative functions. Says Judge Cooley on this point : " It 
 may become his duty as executive to assist in enforcing a 
 judgment he believes erroneous, should enforcement by the 
 ordinary process of the court, and by its own officers become 
 impossible. Nevertheless it is conceivable that the Executive 
 may refuse to obey either a statute or the judgment of a court. 
 ... It can be said of such cases only this, that the responsi- 
 
The Supreme Court of the United States. 75 
 
 bility of the President for a refusal to regard the judicial 
 mandate, is on the one hand to the people, and on the other 
 to the process of impeachment." * 
 
 When President Lincoln refused obedience to Taney's de- 
 cision in the Merryman case, he acted in an unconstitutional 
 manner. He may have thought himself, and possibly was, 
 in the dilemma of either endangering the safety of the Union, 
 or of refusing obedience to a judicial command, yet this did 
 not make his action constitutional. The dilemma was the 
 result of a form of government with limited powers. 
 
 This question of executive independence is historically inter- 
 esting in connection with the impeachment trial of President 
 Johnson. President Johnson, it will be remembered, resisted 
 the operation of laws passed over his veto, which laws he 
 thought impaired his constitutional powers as commander-in- 
 chief of the army, and his powers of removal. According 
 to the view which we have taken, Johnson was of course 
 acting illegally and unconstitutionally, and his attempted 
 impeachment was just. 
 
 What is the rule as to the finality of a decision of the 
 Supreme Court as governing the future action of Congress, 
 and restraining individuals ? When the Supreme Court has 
 decided upon the constitutionality of an act, does the decision 
 thus made bind Congress to refrain in the future from pass- 
 ing measures of a similar character, or make it the bounden 
 duty of individuals henceforth to act in exact conformity with 
 the principles thus laid down ? Or is there a more temporary 
 effect, only the particular dispute in question being settled, 
 and a probable precedent established for the settlement of 
 similar disputes in the future ? The question does not admit 
 of a categorical answer. The general, and undoubtedly the 
 
 1 Principles of Constitutional Law, p. 158. 
 
 Note. — " If one of the heads of the department commits any illegal act, 
 under color of his office, it cannot be pretended that his office alone exempts 
 him from being sued in the ordinary mode of proceeding, and being com- 
 pelled to obey the judgment of the law." (Marbury v. Madison.) 
 
76 The Supreme Court of the United States. 
 
 best view is that a decision, though final so far as the particu- 
 lar case in hand is concerned, is not necessarily final as a con- 
 stitutional interpretation. Although for the sake of uniformity 
 and certainty it would certainly be better that such finality 
 should extend to the constitutional principle, yet a court is 
 always fallible, and therefore it would be dangerous to say that 
 by the decision in a single case a constitutional principle of great 
 importance should be settled for all time. Political predilec- 
 tions cannot be entirely changed by elevation to the bench. 
 There always remains the possibility of an incorrect decision 
 due to persistence of political bias in the members of the 
 court, to insufficient consideration and investigation, or possibly 
 to the justices wholly failing to realize the full significance of 
 their decision. 
 
 President Lincoln in his inaugural address in 1861 expressed 
 this opinion regarding the constitutional finality of the Dred 
 Scott decision. He said : "I do not forget the position 
 assumed by some that constitutional questions are to be decided 
 by the Supreme Court, nor do I deny that such decision must 
 be binding in any case upon the parties to a suit, as to the 
 object of that suit, while they are also entitled to a very high 
 respect and consideration in all parallel cases by the other 
 departments of the government; and while it is obviously 
 possible that such decision may be erroneous in any given case, 
 still the evil effect following it, being limited to that particular 
 case, with the chance that it may be overruled and never 
 become a precedent for other cases, can better be borne than 
 could the evils of a different practice. At the same^time the 
 candid citizen must confess that if the policy of the govern- 
 ment upon the vital questions affecting the whole people is to 
 be irrevocably fixed by the decisions of the Supreme Court the 
 instant they are made as in ordinary litigation between parties 
 in personal actions, the people will have ceased to be their 
 own masters, having to that extent practically resigned their 
 government into the hands of that eminent tribunal." Similar 
 views to these were held and expressed by Presidents Jefferson, 
 
The Supreme Court of the United States. 77 
 
 Madison, Jackson, and Van Buren, and probably by others. 
 I wish to quote also what Mr. Bancroft says upon this subject. 
 He says : " To the decision of an underlying question of con- 
 stitutional iaw no such finality attaches. To endure it must 
 be right. If it is right it will approve itself to the universal 
 sense of the impartial. ... An act of the legislature at vari- 
 ance with the constitution is pronounced void : an opinion of 
 the Supreme Court is equally so." 
 
 There have been several instances in which decisions involv- 
 ing constitutional questions have been reversed by subsequent 
 decisions, notably among which were the legal tender deci- 
 sions. The issue of irredeemable paper money by the general 
 government held in the first case unconstitutional, was subse- 
 quently decided constitutional as a war measure, and later 
 still, held to be a power possessed by the federal legislature 
 capable of being exercised even in times of peace. Likewise 
 in the Virginia Coupon cases, varying decisions were given 
 at different times. 
 
 James Madison in a letter written in 1834 gives a view of 
 the position and influence of the Supreme Court so far as the 
 question we are now discussing is concerned. The opinion 
 there expressed is so sound, clear and moderate, that I shall 
 insert it in full. l 
 
 " Dear Sir : Having referred to the Supreme Court of the 
 United States as a constitutional resort in deciding questions 
 of jurisdiction between the United States and the individual 
 States, a few remarks may be proper, showing the sense and 
 degree in which that character is more particularly ascribed 
 to that department of the government. 
 
 " As the legislative, executive, and judicial departments of 
 the United States are coordinate, and each equally bound to 
 support the constitution, it follows that each must, in the 
 exercise of its functions, be guided by the text of the consti- 
 tution according to its own interpretation of it ; and conse- 
 
 1 Works, IV, 349. 
 
78 The Supreme Court of the United States. 
 
 quently, in the event of irreconcilable interpretations, the 
 prevalence of the one or the other department must depend 
 on the nature of the case, as receiving its final decision from 
 one or the other, and passing from that decision into effect 
 without involving the functions of any other. It is certainly 
 due from the functionaries of the several departments to pay 
 much respect to the opinion of the other; and as far as official 
 independence and obligation will permit, to consult the means 
 of adjusting the differences and avoiding practical embarrass- 
 ments growing out of them, as must be done in like cases 
 between the coordinate branches of the legislative department. 
 But notwithstanding this abstract view of the coordinate and 
 independent right of the three departments to expound the 
 constitution, the judicial department most familiarizes itself 
 to the public attention as the expositor, by the order of its 
 functions in relation to the other departments, and attracts 
 most the public confidence by the composition of the tribunal. 
 
 It is the judicial department in which questions of consti- 
 tutionality, as well as of legality, generally find their ultimate 
 discussion ; and the public deference to and confidence in the 
 judgment of the body are peculiarly inspired by the qualities 
 implied in its members; by the gravity and deliberation of 
 their proceedings ; and by the advantage their plurality gives 
 them over the unity of the executive, and their fewness over 
 the multitudinous composition of the legislative department. 
 Without losing sight therefore, of the coordinate relation of 
 the three departments to each other, it may always be expected 
 that the judicial bench, when happily filled, will, for the rea- 
 sons suggested, most engage the respect and reliance of the 
 public as the surest expositor of the constitution, as well in 
 questions within its cognizance concerning the boundaries 
 between the several departments of the government as in 
 those between the Union and its members." 
 
 A final point remains to be discussed concerning the rela- 
 tion of the judiciary to the executive. 
 
The Supreme Court of the United States. 79 
 
 In what class of cases may the judiciary interfere to com- 
 mand the performance of a duty on the part of an unwilling 
 executive official ? 
 
 The federal judiciary has never attempted to arrogate to 
 itself the exercise of ministerial functions. From the date of 
 the creation of the federal judiciary this has been the rule. 
 In Hayburn's case, which came before a circuit court in 1791, 
 an act of Congress was pronounced unconstitutional, which 
 had assigned ministerial functions to the circuit courts ; and 
 Congress repealed the law. 
 
 Also the Supreme Court has never attempted to law down 
 rules prescribing the manner in which any of the executive 
 officials shall perform their duties. The court must wait until 
 a particular action of an official has given rise to a cause giv- 
 ing it jurisdiction. It cannot, in the anticipation of the future 
 execution of a law, endeavor by an opinion, or a writ, to 
 enforce its execution in a particular manner, or to prohibit 
 entirely the performance of such action. " Neither the exec- 
 utive nor the legislature can be restrained in its action by the 
 judiciary, though the actions of both when performed are in 
 proper cases subject to its cognizance." 
 
 It is only in certain cases that the court will consent to 
 review the actions of one of the other departments; namely, 
 in those of a strictly non-political character. We can state 
 this principle in the words of the court, given in the case of 
 Marbury v. Madison} 
 
 " By the constitution of the United States the President is 
 invested with certain important political powers in the exer- 
 cise of which he is to use his own discretion, and is account- 
 able only to his country in his political character, and to his 
 own conscience. To aid him in the performance of these 
 duties he is authorized to appoint certain officers, who act by 
 his authority and in conformity to his orders. . . . Where 
 the heads of the departments are the political and confidential 
 
 1 1 Cranch, 137. 
 
80 The Supreme Court of the United States. 
 
 agents of the Executive, namely, to execute the will of the 
 President, or rather, to act in cases in which the Executive 
 possesses a constitutional or legal discretion, nothing can be 
 more clear than that their acts are only politically examina- 
 ble. But where a specific duty is assigned by law, and indi- 
 vidual rights depend upon the performance of that duty, it 
 seems equally clear that the individual who considers himself 
 injured, has a right to resort to the laws of his country for a 
 remedy." 
 
 Upon this same point of the regulation of the executive 
 acts by the judiciary, the court in Kendall v. United States, 1 
 said : " There are certain political duties imposed upon many 
 officers in the executive department, the discharge of which is 
 under the direction of the President. But it would be an 
 alarming doctrine, that Congress cannot impose upon an 
 executive officer any duty they think proper, which is not 
 repugnant to any rights secured and protected by the consti- 
 tution, and in such cases, the duty and responsibility grow out 
 of and are subject to the control of law, and not to the direc- 
 tion of the President. And this is emphatically the case 
 where the duty required is of a mere ministerial character." 
 
 In regard to the power of the judiciary to restrain the 
 executive from any duty specifically given by the constitu- 
 tion or by constitutional enactment, the Attorney-General 
 advised the President in 1828 as follows: 2 "I am of the 
 opinion that it is not in the power of the judicial branch of 
 our government to enjoin the executive from any duty specially 
 devolved on it by the legislative branch of the government, or 
 by the constitution of the United States. If it were otherwise 
 it would be in the power of the judicial branch of the govern- 
 ment to arrest the whole action of the other two branches. 
 My opinion is that the judiciary can no more arrest the execu- 
 tive in the execution of a constitutional law than they can 
 arrest the legislature itself in passing a law." 
 
 1 12 Peters, 524. s Opinions Attorney General, I, p. 682. 
 
The Supreme Court of the United States. 81 
 
 The powers of the President are almost entirely of a politi- 
 cal nature and consequently can rarely be brought within the 
 scope of a judicial examination. His only responsibility is to 
 the people ; his only check liability to impeachment. 
 
 During reconstruction times, the State of Mississippi applied 
 to the Supreme Court for an injunction forbidding President 
 Johnson to execute the Reconstruction Act. The court 
 declined to interfere. The question was one of a political 
 nature. 1 
 
 Not always has the Supreme Court been successful in 
 obtaining an enforcement of its decisions, even when given in 
 non-political cases. It compelled Postmaster-General Ken- 
 dall and Secretary Schurz to the performance of ministerial 
 acts, and during the progress of the Burr trial obtained papers 
 from the unwilling President; but in 1803 Jefferson con- 
 temptuously ignored the opinion of the court that the commis- 
 sion rightfully should be given to Mar bury ; and before that, 
 Georgia did not satisfy the judgment obtained against her by 
 Chisholm. In 1832 the court found itself unable to compel 
 obedience to its decision in the Cherokee case. And in 1861 
 the Chief Justice issued an attachment against an army officer 
 for disregarding the writ of habeas corpus, which had been 
 suspended, and when the writ was returned unsatisfied the 
 Chief Justice was forced to abandon the proceedings. 
 
 There are no constitutional relations between the federal 
 judiciary and the state executives. It is true that in the early 
 
 1 Note. Among other questions decided to be of a political nature and 
 therefore not within the cognizance of the court are : de facto or rightful gov- 
 ernment of another country ( Oelston v. Hoyt, 3 Wheat. 246) ; existence of 
 war and restoration of peace ( U. S. v. Anderson 9 Wall. 56) ; authority of 
 foreign ambassadors and ministers {Foster v. Neilson, Pet. 253) ; admission of 
 a state {Luther v. Borden, 7 How. I) ; restorations to constitutional relations 
 of a State lately in rebellion (Oa. v. Stanton, 6 Wall. 50) ; extent of jurisdic- 
 tion of a foreign power, ( Williams v. Suffolk Ins. Co., 13 Pet. 415) ; and right 
 of Indians to recognition as a tribe, ( The Kansas Indians, 5 Wall. 73, and U. 
 S. v. HoUiday, 3 Wall. 407.) 
 
 (Quoted from Cooley's Prin. of Const. Law.) 
 6 
 
82 to The Supreme Court of the United States. 
 
 years of our history the courts of the United States did depend 
 to a certain extent upon state officials for the execution of their 
 decrees, but the compliance of the state officials was a matter of 
 comity and good will, and not of necessity'. Taney, in Kentucky 
 v. Dennison, 1 in which was involved a consideration of the 
 Fugitive Slave Law of 1793, stated the opinion of the court 
 in regard to this question. He said : " The act of Congress 
 declares that it shall be the duty of the executive authority of 
 the State to cause the fugitive to be arrested and secured and 
 delivered to the agent of the demanding State. But looking 
 to the subject matter of this law, and the relations which the 
 United States and the several States bear to each other, the 
 court is of the opinion, the words ' it shall be the duty ' were 
 not used as mandatory and compulsory, but as declaratory of 
 the moral duty which this compact created which Congress 
 had provided the mode of carrying into execution. The act 
 does not provide any means to compel the execution of this 
 duty, nor inflict any punishment for neglect or refusal on the 
 part of the Executive of the State, nor is there any clause or 
 provision in the constitution which arms the government of 
 the United States with this power. And we think it clear that 
 the federal government, under the constitution has no power 
 to impose on a state officer, as such, any duty whatever, and 
 compel him to perform it. It is true that Congress may 
 authorize a particular State officer to perform a particular 
 duty, but if he declines to do so, it does not follow that he 
 may be coerced or punished for his refusal." 
 
 1 24 Howard. 66. 
 
CHAPTER VIII. 
 
 The Federal Judiciary in Politics. 
 
 Leaving the legal and somewhat technical points regarding 
 the federal judiciary, we turn to a consideration of the part 
 played by the nation's highest judicial tribunal in the field of 
 partisan politics. We have learned of the degree of care and 
 solicitude exercised by the constitutional convention in its 
 endeavor to form a judiciary, which should, by its construction 
 and composition, be wholly removed from political strifes and 
 party differences, and thus be enabled to perform with firm- 
 ness and impartiality its high functions as arbitrator between 
 the Federal and State governments, and between the branches 
 of the national government ; and which should be in the high- 
 est and closest degree the exponent of the people's will as 
 expressed in their self-constitued law. To secure its inde- 
 pendence of the legislature, its justices were made appointees 
 of the President and their salaries guaranteed them. To raise 
 them above partisan bias, its justices were given life tenure, 
 removable only by impeachment. 
 
 To what extent has the Supreme Court fulfilled the ex- 
 pectations of its founders, in respect to its non-partisanship ? 
 Happily, we may say, that in this respect, as well as in the 
 other respects of which we have already treated, the court has 
 well played its part. 
 
 With scarcely an exception, all of the Supreme Court Jus- 
 tices were, before their elevation to the bench, political parti- 
 sans to a greater or less degree ; but with their nomination to 
 
 83 
 
84 The Supreme Court of the United States. 
 
 the judiciary these political predilections have been as far as 
 possible laid aside. That there should have remained how- 
 ever a certain amount of political sediment, which has caused 
 the general tenor of the court decisions to vary from loose to 
 strict construction, as the composition of its bench changed, is 
 natural, and possibly not to be deprecated. The temper of 
 the court has, however, changed slowly, vacancies occurring 
 very seldom ; and thus its composition has sometimes repre- 
 sented the general constitutional view of a past, rather than a 
 contemporary political party. 
 
 After the adoption of the constitution, the organization of 
 our government was in the hands of the Federalist party, and 
 remained in their hands during the first three administrations. 
 Washington, while endeavoring to quiet political strifes by 
 selecting his appointees from among the ranks of the Anti- 
 Federal party, as well as from his own, as was shown in the 
 composition of his cabinet, was nevertheless careful to place 
 the infant government in the hands of guardians who, though 
 not all constitutional latitudinarians, would yet be friendly 
 to it. 
 
 The first bench of the Supreme Court showed a representa- 
 tion of both parties, but at its head was placed John Jay, a 
 man of a strong federalist type. Jay's attitude towards fed- 
 eral strength is expressed in one of his letters to Washington 
 in which he said : " What power should be granted to the 
 government so constituted, is a question that deserves much 
 thought. I think the more the better : the States retaining 
 only so much as may be necessary for domestic purposes, and 
 all their principal officers, civil and military, being commis- 
 sioned and removable by the National Government." His 
 Associate Justices were William Cushing of Massachusetts, 
 James Wilson of Pennsylvania, John Blair of Virginia, 
 Robert A. Harrison of Maryland, and James Iredell of 
 North Carolina. 
 
 The history of the first ten years of the Supreme Court, 
 from 1789 to 1800, is not the most important period of its 
 
The Supreme Court of the United States. 85 
 
 existence. The work done by the court during these years 
 was very small. At the first session there were no cases on 
 the docket. From 1790 to 1800 only six cases were decided 
 in which were involved questions of constitutional law. Mar- 
 shall upon his elevation to the Supreme bench, found but 
 ten cases awaiting adjudication. Few recognized at this time 
 the powerful influence this tribunal was to have in shaping 
 the development of the nation. A position on its bench was 
 then considered not as important as many positions now rank- 
 ing far below it. Such position was not even considered in- 
 compatible with the holding of another office at the same 
 time. In 1794, Chief Justice Jay was commissioned as Min- 
 ister to England, and accepted, but without vacating his seat 
 on the Supreme bench. Upon his return to America in 1795, 
 he was elected Governor of the State of New York, and 
 resigned his position as Chief Justice. Service to a State, 
 even to a Federalist, stood higher at that time than did service 
 in the highest judicial capacity to the national government. 
 Jay's Chief Justiceship is chiefly marked by the decision of 
 the case of Chisholm v. Georgia, concerning the importance of 
 which we have already spoken. Jay's service to the Union 
 during these years is summed up by his most recent historian 
 as follows : " Three great facts were determined once for all : 
 the dignity of the court was vindicated from encroachment by 
 the federal executive and legislative departments ; its jurisdic- 
 tion was established over the state governments; and inci- 
 dentally, Jay announced and determined that foreign policy 
 of the United States which has been accepted and followed 
 from that day to this." 1 
 
 John Rutledge, at one time Governor of South Carolina, 
 and an Anti-Federalist, was appointed to succeed Jay. His 
 nomination was not confirmed by the Senate, owing to pro- 
 nounced political partisanship, expressed in a public speech 
 after he had received notice of his appointment as Chief Jus- 
 
 1 Pellen, in American, Statesmen Series, p. 264. 
 
86 The Supreme Court of the United States. 
 
 tice, and therefore at a time when, as a member of the judi- 
 ciary, he should have thrown aside, outwardly entirely, and 
 inwardly, as far as possible, all political bias. Also by the 
 time Congress met in the winter, it was evident that his mental 
 faculties were suffering from disease. 
 
 William Cushing was Washington's next appointee. He 
 was confirmed by a unanimous vote of the Senate, but retained 
 his office but one week, resigning before holding a session of 
 the court. 
 
 Oliver Ellsworth of Connecticut was then appointed. He 
 belonged to the class of moderate Federalists, and had been 
 a member of the Constitutional Convention, and was, when 
 appointed, United States Senator. It was he who had drafted 
 the Judiciary Act of 1789. In 1799, Ellsworth was sent by 
 President Adams as Commissioner to France, and upon his 
 return in 1801, he resigned his commission as Chief Justice. 
 
 The Federalists in the last days of their power were guilty 
 of several unwise and impolitic acts. Among these was a law 
 hurried through Congress in February, 1801, and after they 
 had found themselves defeated in the November elections, 
 which considerably modified the system of federal courts. By 
 this act, the number of justices of the Supreme Court was 
 reduced to five, the number of district courts was increased to 
 twenty-three, and the districts arranged in six circuits, each 
 circuit to have a bench of its own, composed of a chief justice 
 and two associate justices ; and the Supreme Court justices 
 were to be relieved of all circuit duty. This act passed, the 
 President filled up the offices thus created with staunch 
 Federalists, and, more important than all, appointed and the 
 Senate confirmed, as Chief Justice, John Marshall of Virginia, 
 then Adams' Secretary of State. 1 
 
 1 It is related that at midnight of March 3d, when the term of Adams 
 expired, Marshall, the Secretary of State, was interrupted by the Attorney- 
 General of the new President while making out commissions for these 
 federal judgeships, and was obliged to leave a number of them unsigned. 
 Concerning these " midnight appointments," see Parton's Jefferson. 
 
The Supreme Court of the United States. 87 
 
 The Republicans, upon their accession to power, were natu- 
 rally incensed at this effort of their defeated opponents to con- 
 tinue their hold upon the judiciary. This political move on 
 the part of the Federalists was of no inconsiderable import- 
 ance to the party just coming into power. Jefferson, and 
 Randolph, his leader in the House, could foresee that it was 
 possible for Chief Justice Marshall, aided by the numerous 
 circuit and district courts, seriously to interfere with what 
 they conceived to be the proper development of the central gov- 
 ernment. An almost immediate agitation was begun for the 
 repeal of the law of 1801. A repeal, even with a good work- 
 ing administrative majority in both Houses, was not, how- 
 ever, as simple a proceeding as it might appear. Federal 
 judges are guaranteed by the constitution a fixed tenure and 
 are removable only by impeachment. A repeal of the law, 
 thus depriving the new judges of office, would therefore be of 
 doubtful constitutionality, and the Republicans were strict 
 constructionists. But consistency, however precious a jewel it 
 may be, is seldom possessed by political parties, and the Repub- 
 licans were able to stifle the expostulations of their consciences 
 upon this point. The ground taken by the Federalists was, nat- 
 urally, that the assumption of such power of repeal by Con- 
 gress, would forever destroy the independence of the judiciary. 
 Randolph defended the constitutionality of the repeal, and 
 sustained himself upon the following rather weak reasoning. 1 
 Said he : " If you are precluded from passing this law lest 
 depraved men might make it a precedent to destroy the inde- 
 pendence of your judiciary, do you not concede that a desper- 
 ate faction, finding themselves about to be dismissed from the 
 confidence of their country, may pervert the power of erecting 
 courts, to provide to an extent for their adherents and them- 
 selves ? We assert that we are not clothed with the tremen- 
 dous power of erecting, in defiance of the whole spirit and 
 express letter of the Constitution, a vast judicial aristocracy 
 
 1 Cf. Adams' Eandolph, pp. 61-72. 
 
88 The Supreme Court of the United States. 
 
 over the heads of our fellow citizens, on whose labor it is to 
 prey. It is not on account of the paltry expense of the new 
 establishment that I wish to put it down. No, sir ! It is to 
 give the death blow to the pretension of rendering the judi- 
 ciary an hospital for decayed politicians : to prevent the state 
 courts from being engulfed by those of the Union ; to destroy 
 the monstrous ambition of arrogating to this House the right 
 of evading all the prohibitions of the Constitution, and hold- 
 ing the Nation at bay." One would call this an argument 
 against the constitutionality of the law of 1801, rather than a 
 proof of the constitutionality of its repeal. 
 
 The repeal passed the House by a large majority. By this 
 law it was provided that all acts or parts of acts relative to the 
 organization of the judiciary in force before the passage of the 
 act of February, 1801, should, on the first day of July, 1802, 
 be revived. The positive gain by the Republicans from this 
 repeal was not great. The inferior courts were lessened, but 
 the Supreme Court was left untouched, and at its head was 
 Chief Justice Marshall. As Henry Adams says in his life of 
 John Randolph, " The repealing act was in fact not revolu- 
 tion but concession; overthrowing a mere outer line of de- 
 fense, and left the citadel intact, and gave a tacit pledge that 
 the federalist Supreme Court should not be disturbed, at least 
 for the present. When it is considered that Chief Justice 
 Marshall, in the course of his long judicial career rooted out 
 Mr. Jefferson's system of polity more effectually than all the 
 Presidents and all the Congresses that ever existed, and that 
 the Supreme Court not only made war on States' rights, but 
 supported with surprising unanimity every political and con- 
 stitutional innovation on the part of Congress and the Execu- 
 tive, it can only be a matter of wonder that Mr. Jefferson's 
 party, knowing well the danger, and aware that their lives 
 and fortunes depended, or might probably depend, on their 
 action at this point, should have let Chief Justice Marshall 
 slip through their fingers. To remodel the whole bench might 
 
The Supreme Court of the United States. 89 
 
 have been revolution, but not to remodel it was to insure the 
 failure of their aim." * 
 
 Marshall held the position of Chief Justice for thirty-four 
 years, and his influence during all these years in fixing the 
 federal law, in construing the Constitution, and in consolida- 
 ting by his opinions the Union, and increasing the confidence 
 in it, it will be impossible to overrate. Marshall was a gen- 
 uine federalist, or rather nationalist, but not of the extreme 
 Hamiltonian school. While defending with all his power the 
 federal constitution, he freely recognized its limitations. He 
 early declared that his rule of interpretation would be neither 
 strict nor too liberal, but that the natural meaning of the 
 words should govern. At the time of the appointment of 
 Marshall, American federal jurisprudence was in its infancy, 
 indeed had hardly been born. The constitution, formed in the 
 midst of debate, remained as yet practically uninterpreted. So 
 little had been done by the former chief justices, that Marshall 
 had the very foundations to lay. But he did more than this. 
 As one of his biographers states, he laid not only the founda- 
 tions of constitutional law, but raised the superstructure. It 
 is one of the happy events with which fate has favored us, 
 that, at this time, when the constitution was as yet watched 
 with extreme jealousy and suspicion by a large minority, pos- 
 sibly by a majority, of the whole people, our fundamental 
 law obtained, and for so long a time, as its interpreter, the ser- 
 vices of a man who, while not remarkable for his judicial 
 learning, yet possessed a wonderful breadth of view of the 
 philosophy of government and law, and of the principles of 
 equity, and an appreciation of the fundamental principles un- 
 derlying virtue and right ; and added to these a sound dis- 
 criminating judgment and powers of analysis, and a proper 
 grasp upon our theory of nationality. 
 
 In making his decisions, Marshall was ploughing in new 
 ground, encompassed by no limiting or conflicting collections 
 
 1 Pp. 4-5. 
 
90 The Supreme Court of the United States. 
 
 of previous decisions. " He was making law ; he had only to 
 be logical and consistent in the manufacture." 
 
 To show partially the amount of work done by Marshall 
 during his term of office, I quote the following statistics. 1 
 During his term 1106 opinions of the court were filed, and in 
 519 of these Marshall delivered the opinion of the court, the 
 remainder being unequally divided among the fifteen judges 
 who were his associates during that entire period. During 
 the same period dissenting opinions were filed by Marshall in 
 eight cases in all. The most important, and the only one 
 involving a constitutional question, was that of Ogden v. 
 Saunders, decided in 1827. From the organization of the 
 Court in 1790, until Marshall's appointment in 1801, six 
 decisions were rendered involving questions of constitutional 
 law. From 1801 to 1835, sixty-two of such decisions were 
 given, in thirty-six of which the opinion of the court was 
 written by Marshall ; in the remaining twenty-six by some 
 one of seven other justices. The decisions of the court, during 
 this period fill the thirty volumes of reports from first Cranch 
 to ninth Peters. 
 
 The decided tendency of the Supreme Court to strengthen 
 and enlarge by its decisions the powers of the federal govern- 
 ment was viewed with considerable alarm by the Republicans. 
 Jefferson and his followers did not cease their attempts to 
 weaken the judiciary with the repeal of the law of 1801. At 
 the suggestion of Jefferson himself, in 1804, articles of im- 
 peachment were presented in the House against Samuel Chase, 
 Associate Justice of the Supreme Court of the United States. 
 There is little doubt that this attack was but a part of a 
 systematic attempt to weaken, if not totally destroy the effi- 
 ciency of the federal judiciary, by using the implement of 
 impeachment. That this was the purpose is shown by senti- 
 ments expressed by Giles, who, together with Randolph, con- 
 ducted the attack against Chase. " Giles labored with excessive 
 
 1 Const. Hist. U. S. as seen in Devel. of its Laws, Chap. II. 
 
The Supreme Court of the United States. 91 
 
 earnestness," says Mr. Adams, " to convince Smith of certain 
 principles, upon which not only Mr. Chase, but all the other 
 judges of the Supreme Court, excepting the last appointed, 
 
 must be impeached and removed, and if the judges of 
 
 the Supreme Court should dare, as they had done, to declare 
 an act of Congress unconstitutional, or to send a mandamus to 
 the Secretary of State, as they had done, it was the undoubted 
 right of the House of Representatives to impeach them for 
 giving such opinions, however honest or sincere they may have 
 been in entertaining them. Impeachment was not a criminal 
 prosecution — and a removal by impeachment was nothing 
 more than a declaration by Congress to this effect ; you hold 
 dangerous opinions, and if you are suffered to carry them into 
 effect you will work the destruction of the Union. We want 
 your offices for the purpose of giving them to men who will 
 fill them better." 1 Again, in a former entry, 2 Mr. Adams 
 says ; and I quote him as a member of the Senate before 
 whom the impeachment was tried, " the attack upon Mr. Chase 
 was a systematic attempt upon the independence and powers 
 of the judicial department, and at the same time an attempt to 
 prostrate the authority of the National Government before 
 those of the individual States. The principles first started in 
 the case of John Pickering, at the last session, have on the 
 present occasion, been widened and improved upon to an 
 extent for which the spirit of the party itself was not pre- 
 pared." 
 
 " The impeachment of Justice Chase is a landmark in Amer- 
 ican history, because it was here that the Jeffersonian Repub- 
 licans fought their last aggressive battle, and, wavering under 
 the shock of defeat, broke into factions which slowly aban- 
 doned the field and forgot their discipline." 3 
 
 Judge Pickering, of one of the district courts, had been 
 impeached in 1803-4 on account of drunkenness, and upon the 
 very day of his conviction the impeachment of Chase was 
 
 1 J. Q. Adams' Diary, I, 322, (Dec. 21, 1804.) 
 
 8 1, 371. 3 Adams' Kandolph, p. 131. 
 
92 The Supreme Court of the United States. 
 
 begun. The articles against Chase were based on his conduct 
 while on circuit in the conduct of the trials of Fries and Cal- 
 ender indicted under the Sedition law, in 1800, and on an 
 address delivered by him to the grand jury at Baltimore in 
 1803. The political light in which this trial is to be viewed 
 has been pointed out, and it will not be necessary to go into 
 details of the management, or rather mismanagement, of Ran- 
 dolph, and final failure of conviction. 
 
 The attempts of the States' Rights party to control the judi- 
 ciary had failed. From now until the accession of Jackson, 
 and the death of Marshall, the Jeffersonian Republicans had to 
 stand by and see the Supreme Court, under the powerful influ- 
 ence of Marshall, and Joseph Story (who had been appointed 
 associate in 1811), gradually extending and strengthening the 
 federal government by its decisions. It was with honest fears 
 that Jefferson saw affairs taking this course. " The judiciary 
 of the United States," he wrote in 1820, 1 "is the subtle corps 
 of sappers and miners constantly working underground to 
 undermine the foundations of our confederate fabric. They 
 are constantly construing our constitution from a coordination 
 of a general and a special government, to a general and 
 supreme one alone. They will lay all things at their feet, and 
 they are too well versed in the English law to forget the 
 maxim ' boni judicis est ampliare jurisdv&ioneim? " 
 
 So vexed was Jefferson that the judicial branch should not 
 be in complete harmony with his administration, that he even 
 proposed that future appointments of judges should be for four 
 or six years, and removable by the President and Senate, thus 
 to bring their conduct at regular intervals under probation. 2 
 
 The extreme. Democracy came into power with the elec- 
 tion of Andrew Jackson to the Presidency. During his 
 administrations five vacancies occurred in the Supreme Court. 
 McLean was appointed in 1829, Baldwin in 1830, Wayne in 
 1835, and Chief Justice Taney and Barbour, on the same day 
 
 1 Works, VIII, 192. 2 Works, VIII, 256. 
 
The Supreme Court of the United States. 93 
 
 in 1 836. The effect of these appointments upon the complex- 
 ion of the court was immediate. In the case of Briscoe v. 
 Bank of the Commonwealth of Kentucky, 1 heard in 1835, just 
 before Marshall's death, as we have already mentioned, the 
 bank was not sustained in its issues of bills of credit, upon the 
 ground of unconstitutionality. Coming up for a re-hearing 
 under Taney, the bank was sustained, and the previous decis- 
 ion reversed. This decision marked the beginning of a new 
 era in the history of our constitutional law. The court, which 
 up to this time, upon all occasions, had firmly upheld the fed- 
 eral government in the exercise of all its proper powers, now 
 began to incline in the opposite direction. In Briscoe's case 
 it broke from its previous principles, and for the first time 
 rendered nugatory one of the provisions of the constitution. 
 In this case the States' Rights party won their first victory in 
 judicial interpretation. 
 
 The character of the Supreme Court was influenced at this 
 time not only by the new appointments, but it had to contend 
 against a hostile executive. Jackson's attitude towards the 
 judiciary has been indicated in the quotation taken from his 
 veto message on the Bank Bill. 2 In 1830 the court received 
 a severe check from its failure to enforce its judgments given 
 in the Cherokee Indian Cases. Jackson flatly refused to assist 
 in the execution of these judgments, after the State had refused 
 compliance. J. Q. Adams, writing at this time, said : 3 "By 
 extending the laws of Georgia over the country and people of 
 the Cherokees, the constitution, treaties and laws of the United 
 States were quod hoc set aside. They were chaff -before the 
 wind. In pursuance of these laws of Georgia, a Cherokee 
 Indian is prosecuted for the murder of another Indian before 
 a State court of Georgia, tried by a jury of white men, and 
 sentenced to death. He appeals to the Chief Justice of the 
 Supreme Court of the United States, who issues an injunction 
 to the governor and executive officers of Georgia, upon appeal 
 
 1 II Peters, 257. * See page 9. 3 Diary, VIII, 262. 
 
94 The Supreme Court of the United States. 
 
 to the laws and treaties of the United States. The Governor 
 of Georgia refuses obedience to this injunction, and the legis- 
 lature pass resolutions that they will not appear to answer 
 before the Supreme Court of the United States. The consti- 
 tution, and the laws and treaties of the United States are pros- 
 trate, in the State of Georgia. Is there no remedy for this 
 state of things ? None. Because the executive of the United 
 States is in league with the State of Georgia. ... A majority 
 of both House! of Congress sustain him in this neglect and 
 violation of his duty. . . . This example of the State of 
 Georgia will be imitated by other States, and with regard to 
 national interests. . . . The Union is in most imminent dan- 
 ger of dissolution, from the old inherent vice of confederacies, 
 anarchy in the members." 
 
 Friends of the National Government now began to view 
 this new treatment of the constitution with as much apprehen- 
 sion as had the Jeffersonian school the federalistic tendencies 
 of the judiciary from 1810 to 1830. Said a writer in the 
 New York Review of April, 1838 : " In short, when we con- 
 sider the revolution in opinion, in policy and in members that 
 have recently the character of the Supreme Court, we can 
 scarcely avoid being reduced nearly to a state of despair of the 
 commonwealth." Chancellor Kent, in a letter to Story, wrote : 
 " I have lost my confidence and hopes in the constitutional 
 guardianship and protection of the Supreme Court." ! Justice 
 Story, who had been upon the supreme bench since 1811, 
 complained of this new manner in which the constitution was 
 being treated. In 1845 he wrote : 2 " I have been long con- 
 vinced that the doctrines and opinions of the old court were 
 daily losing ground, and especially those on great constitu- 
 tional questions. New men and new opinions have succeeded. 
 The doctrines of the constitution so vital to the country, which 
 in former times received the support of the whole court, no 
 longer maintain their ascendency." 
 
 1 2 Story's Life and Letters, 270. 2 2 Story's Story, 527. 
 
The Supreme Court of the United States. 95 
 
 There was one question which the court had now to meet, 
 which had not troubled the court during Marshall's time. 
 The question of Slavery, so long kept down by compromise, 
 now again raised itself, and this time demanded settlement, not 
 by the legislature, but by the judiciary. 
 
 From its influence on our history, undoubtedly the most 
 important case decided by the Supreme Court, and the one for 
 which Taney is chiefly remembered is that of Scott v. Sanj 'oral, 1 
 decided in 1857. The case had been heard the year previous, 
 and a decision reached, but its publication had been withheld 
 until after the presidential election of 1856 for fear of adding 
 a dangerous excitement to the already existing excitement due 
 to the Kansas-Nebraska troubles. The facts of the case are 
 so well known as to scarcely need a repetition here. Dred 
 Scott, a negro slave in Missouri, had been carried into the 
 Territory of Minnesota, where, by the Missouri Compromise 
 Act of 1820, slavery did not exist. Upon being carried back 
 into Missouri by his master, Scott sued for freedom, upon the 
 ground that he had been voluntarily carried by his owner into 
 a Territory where slavery was not allowed. The Supreme 
 Court in its decision declared that Scott was not a citizen of 
 a State, and therefore could not sue in a United States Court, 
 and furthermore Congress had never had the right to forbid 
 slave-owners from settling in the Territories, and still retain- 
 ing control of their slaves. The Missouri Compromise Act 
 had hence been unconstitutional. 
 
 The effect of this decision upon a country already in the 
 throes of political struggle over the organization of the terri- 
 torial governments of Kansas and Nebraska, was prodigious. 
 The country immediately divided ; the South accepting, and 
 the North refusing to accept the decree. Lincoln, at Spring- 
 field, on June 26, 1857, made one of his great speeches, 
 the substance of which amounted to a repudiation of the Dred 
 Scott decision. The result of the decision was undoubtedly a 
 
 1 19 Howard, 393. 
 
96 The Supreme Court of the United States. 
 
 drawing closer together in sentiment and consequent increase 
 in power, of the Anti-slavery party, enabling them to elect 
 their president in 1861, thus precipitating the catastrophe of 
 civil war. 
 
 If it were generally admitted, that in making this decision 
 invalidating the Missouri Compromise, and thus furnishing 
 such strong support to the Slavocracy, the Supreme Court had 
 this question legitimately before it demanding a decision ; and 
 if it were not believed by many that appointments to the 
 Supreme Court had for some time been so managed as to 
 obtain a bench which would render such a decision as this, 
 we would not have to dwell further on this case. But these 
 being the facts, we must stop to consider them. 
 
 Von Hoist in his last volume on the Constitutional History 
 of the United States, is the first prominent historian to take the 
 emphatic ground that for years it had been the systematic and 
 conscious aim of the South to make the Supreme Court the 
 citadel of Slavocracy, and that the Dred Scott decision was a 
 witness of the success of their efforts. Relative to this Von 
 Hoist says : " The slavocracy had opened their eyes to the fact 
 that the condition precedent to the continuance of slavery was 
 its supremacy over the Union. Of how great importance, 
 therefore, a preponderant position in the Supreme Court of the 
 United States was, could not escape the keen eyes of the 
 leaders, 1 and the little interest public opinion had in questions 
 
 1 Whether authoritative proof can be produced of J. M. Ashley's asser- 
 tion that Calhoun was the father of the idea, (says Von Hoist) I do not 
 know; that the assumption, seems probable to me I need not say, in view of 
 my opinion on the towering position of Calhoun among all the leaders of 
 slavocracy. The passage in Ashley's speech of May 29, 1860, from which 
 the facts adduced in the text are chiefly taken, is as follows : " Failing, 
 however, to secure the open indorsement by the Democratic party of that 
 day of the favorite theory of the slave power, Mr. Calhoun hit upon the 
 plan of getting possession of the Supreme Court, because it is a power the 
 furthest removed from the people, is held in great esteem by them, and 
 such acts of aggression as Mr. Calhoun contemplated, if committed by the 
 Supreme Court, he knew would be so quietly done as to excite no alarm 
 and pass almost unnoticed." Congr. Globe, I Sess. 36th Cong. App., p. 366. 
 
The Supreme Court of the United States. 97 
 
 relating to the organization of the judiciary as well as the little 
 understanding it had of them, made the realization of their 
 wishes in that direction easy. By the law of March 3, 1837, 
 the number of associate justices of the Supreme Court was 
 increased to eight, and that of the circuit courts to nine. Ken- 
 tucky and Tennessee were separated from Ohio, and hence- 
 forth, together with Indiana, Illinois and Michigan, constituted 
 the seventh circuit. The two new circuits were made up of Ken- 
 tucky, Tennessee and Missouri ; and of Alabama, Louisiana, 
 Mississippi and Arkansas, respectively. The free States with 
 a population (according to the census of 1840) of 9,654,865, 
 had, therefore, four circuit courts, while the slave States, 
 with a white population of only 4,573,930, had five. In con- 
 sequence of the rapid increase in population in the free States, 
 this unequal apportionment became more inequitable and more 
 unreasonable as the years rolled by. It at last came to such a 
 pass that the judge of the seventh circuit had more to do than 
 the five judges of the southern circuits together, while the new 
 free States admitted into the Union were allowed no represen- 
 tation in the Supreme Court of the United States, and were 
 neither assigned a place in the existing circuits nor constituted 
 circuits themselves, although the amount of judicial business 
 in them in 1860, of which such courts would have had juris- 
 diction, was, according to Ashley, equal to at least one-third 
 of that of all the fifteen slave States. 
 
 " Great as was the advantage which the slavocracy acquired 
 by the law of 1837, they did not consider themselves suffi- 
 ciently secured by it. Only after they had succeeded in 
 making sure of a permanent majority in the judiciary com- 
 mittee of the Senate, did they feel entirely certain that a 
 majority of the justices of the Supreme Court would profess 
 the doctrines relative to slavery, which were agreeable to the 
 slave interest, whenever a legal question bearing on slavery 
 arose. The proposals of the judiciary committee of the Senate 
 controlled, as a rule, the position of the Senate on the nomina- 
 tions of the President to the Supreme Court, and, beginning 
 7 
 
98 The Supreme Court of the United States. 
 
 with Tyler's administration, the committee had, on every occa- 
 sion, criticized the nominations in such a way as to make it a 
 moral certainty that the opinions of the nominees on the 
 slavery question would be of great weight in, if not decisive 
 of, the question of their confirmation. 1 
 
 "At last even Southerners of tried probity and great consid- 
 eration found no favor in their eyes, when, on the slavery 
 question they professed constitutional convictions, — convic- 
 tions which were condemned by the radical slavocrats, during 
 the development of the struggle, as dangerous heresies, with 
 an intensity to which time only added strength." 2 
 
 The entire substance then of this quotation that we have 
 made from "Von Hoist, is, as he admits, taken from a speech 
 delivered by Mr. J. M. Ashley of Ohio, before the House of 
 Representatives, May 29th, 1860. Also, it is in this recently 
 published volume, that he for the first time makes mention of 
 this speech, or of the facts to which it refers ; and also to 
 Calhoun's connection with this plan of controlling the federal 
 judiciary, although he some years ago prepared a life of Cal- 
 houn for the American Statesmen Series. It is impossible to 
 produce documentary proofs of these allegations, as the nomi- 
 
 1 The proofs which Mr. Ashley gives of this is as follows : 
 " Sir, I expect to show that no man whose nomination has for years been 
 submitted to the Senate for confirmation has been rejected for his want of 
 learning, or character as a citizen, or ability as a lawyer ; but that they 
 have been rejected solely on the ground of their known or supposed un- 
 soundness on the question of slavery. . . . Under this (Pierce's) adminis- 
 tration, the judiciary committee was composed of Butler of South Carolina, 
 chairman, Downs of Louisiana, Bradbury of Maine, Geyer of Missouri, and 
 Badger of North Carolina : all from slave States with one exception, and 
 he a supporter of the administration. . . . The following are some of the 
 names which I remember, although there are doubtless more, of the per- 
 sons who have been nominated for places on the supreme bench, and either 
 rejected or their names withdrawn : Jno. C. Spencer of N. Y., Reuben Wal- 
 worth of N. Y., Edward Key, Geo. W. Woodward, Jno. M. Read of Pa., 
 E. A. Bradford and Wm. C. Micau of La., Geo. E. Badger of N. C, and 
 others whose names I cannot now recall." 
 'Const. Hist. U. S., 1856-8. 
 
The Supreme Court of the United States. 99 
 
 nations were all considered in secret sessions. I have been 
 unable to investigate the assertions any further than Dr. Von 
 Hoist has done, and therefore leave these statements to have 
 the weight that they may deserve from the authority of Mr. 
 Ashley, and the sanction of Dr. "Von Hoist. 
 
 " Spite of the absence of documentary evidence, it would be 
 ridiculous to deny," says Von Hoist, " that orthodoxy on the 
 slavery question had come to be a qualification for a seat on 
 the supreme bench ; but it does not, therefore, follow that the 
 judges were unscrupulous partisans, ready, consciously, to 
 surrender their constitutional convictions at the command of 
 the slave-holding interest." 
 
 That the judiciary committee was, for some years, influenced 
 in its action regarding nominations to the Supreme Court by 
 the views of the nominees regarding slavery is extremely 
 probable. That a court was obtained which did render a 
 decision in favor of the slavocracy is certain. To what an 
 extent this result was directly due to the conscious efforts of 
 the committee in this direction we shall never know. That, 
 however, the justices acted in accordance with their conscien- 
 tious interpretation of the constitution, a study of the charac- 
 ter of the justices, of the history of the cases, and of the several 
 decisions rendered, must, I think, convince the impartial. 
 
 That point upon which the judicial action of the court has 
 been especially impeached by many, is the unnecessary exten- 
 sion of the decision rendered in the Dred Scott Case so as to 
 cover the constitutionality of the Missouri Compromise Act. 
 This, it is claimed, was done expressly for political purposes, 
 the court thus acting in direct opposition to all its previous 
 precedents. This opinion is strengthened by two facts. In 
 the first place, it was originally determined to confine the 
 decision of the court to the facts of the case actually before 
 the court, and Justice Nelson was intrusted with the prepara- 
 tion of the opinion, and in this opinion the constitutionality 
 of the Compromise Act of 1820 was not touched. Later, 
 it was decided to cover in the decision, all the points in 
 
100 The Supreme Court of the United States. 
 
 the record, because, as Justice Wayne said, the public were 
 expecting that this would be done. Chief Justice Taney was 
 selected to prepare the opinion. In the second place, grounds 
 for suspicion have been found from the fact that certain 
 remarks in the inaugural address of President Buchanan 
 delivered before the rendition of the decision, would possibly 
 indicate a knowledge upon his part of what was to be the 
 decision of the court. 
 
 The points bearing upon the political significance of the 
 action of the Supreme Court in this case can obviously not be 
 discussed at length pro and con here, but for a fuller consider- 
 ation of these questions than can be here given, reference must 
 be had to the various authorities where this has been done, and 
 to the press of that day. 
 
 Taney served as Chief Justice twenty-eight years, his death 
 occurring in 1864. During his long term, many important 
 cases were decided, but they do not need such specific treat- 
 ment as Marshall's decisions have received, for they bore to 
 the development of the constitution a different relation from 
 those of Marshall, and, for the purposes of this paper, are of 
 less importance. When Taney was appointed to preside, the 
 Supreme Court was nearly half a century old, and its powers 
 and jurisdiction were well fixed, and American constitutional 
 jurisprudence had been, to a large extent, developed. From a 
 doubtful experiment, as it was in 1800, our constitutional 
 system had become, by 1835, an undoubted success, and a 
 developed scheme of government. It did not fall to the lot 
 of Taney to make law, as Marshall had done. 
 
 Upon the death of Taney, in 1864, President Lincoln 
 appointed as his successor Salmon P. Chase, who had been his 
 competitor for presidential honors in 1860, and was, at that 
 time, his Secretary of State. The death of Chase occurred in 
 1873. His place was filled by Morrison R. Waite, who held 
 the position until his death last year. The present incumbent 
 is Mr. Melville Fuller, an appointee of President Cleveland. 
 
The Supreme Court of the United States. 101 
 
 The period since the Civil War has been one of great 
 importance in the history of the Supreme Court. Vital 
 necessity caused new and extraordinary assumptions of power 
 by the legislature and the executive. Irredeemable paper 
 money was issued, the writ of habeas corpus suspended, 
 emancipation proclaimed, and blockade and other military 
 powers exercised. After the suppression of the rebellion, 
 three amendments to the constitution were adopted, provision- 
 ary governments were erected in the States which had been 
 in insurrection ; and conditions were imposed upon their reen- 
 trance into the Union. The exercise of all these powers was 
 claimed, of course, to rest upon constitutional authority, and in 
 connection with them arose constitutional questions which had 
 to be settled by the Supreme Court. The general result of 
 the action of the court during this period has been to sustain 
 the President in the enormous powers he exercised during 
 these critical years, the ground being that the exercise of such 
 powers was necessary to the preservation of the Union, and 
 that they were adjuncts to the authority given him as Com- 
 mander-in-Chief; and also to stand as a barrier against the 
 tide of opinion which threatened to set too strongly towards 
 centralization. This latter service of the Supreme Court has 
 been already referred to. 1 
 
 The legal status of those States, which, having been in 
 rebellion against Union, were undergoing reconstruction prior 
 to their return into full Statehood, and the constitutional 
 nature of the provisionary governments that had been erected 
 in them, were points not easily determined, and there was for 
 a time considerable anxiety on the part of the administration 
 as to how the question would be treated by the Supreme Court. 
 
 A man named McArdle, of Mississippi, obtained a writ of 
 habeas corpus from a circuit judge to the military commis- 
 sion trying him. Failing of release, he appealed to the 
 Supreme Court of the United States. The case, however, did 
 
 'P.O. 
 
102 The Supreme Court of the United States. 
 
 not reach decision, for Congress, fearing the action of the 
 Court upon the reconstruction governments, the constitution- 
 ality of which, was involved in the case, passed a law taking 
 away the right of appeal in cases of this nature. In 1868, a 
 bill was passed by the House of Representatives providing that 
 six judges should be necessary to constitute a quorum of the 
 Supreme Court, and that the concurrence of two-thirds of the 
 members of the whole court should be necessary to pronounce 
 a decision in any case pending before it against the validity of 
 any act of Congress. The proximate cause of this act was the 
 report that five of the justices of the supreme bench at that 
 time believed the Reconstruction Acts to be unconstitutional. 
 The bill failed, however, in the Senate. The anxiety of Con- 
 gress was allayed when, in 1868, in the case of Texas v. 
 White ' the Reconstruction Acts were considered, and practi- 
 cally sustained, though, from the nature of the points involved, 
 we cannot say that their constitutionality has been fully 
 decided. 
 
 Since 1865 the Supreme Court has shown a return to a 
 somewhat looser construction of the constitution than obtained 
 during the preceding thirty years. Vacancies occurring, Lin- 
 coln appointed a new Chief Justice and four Associate Justices. 
 Grant added three new Associates. This infusion of Republi- 
 can blood had the result upon the general tenor of the 
 decisions of the court that might have been expected. 
 
 Broadly speaking, then, the history of the Supreme Court 
 may be divided into three periods. The first, one of loose con- 
 struction, lasting nearly half a century ; the second, a period of 
 nearly twenty-five years, during which there was a stricter 
 interpretation of the federal law ; and third, a period of rather 
 looser interpretation, lasting from the outbreak of the Civil 
 War to the present day. 
 
 These changes in the tenor of the court's decisions have 
 flowed naturally from the changes in the composition of its 
 
 1 7 Wallace, 700. 
 
The Supreme Court of the United States. 103 
 
 bench, and in no case is it strongly maintained that the justices 
 have decided in any other but a conscientious manner. It is 
 only when we look over a volume of reports that we can dis- 
 tinguish the general tendency of the court. Judges have not 
 hesitated, in specific cases, to decide otherwise than would have 
 been expected from a knowledge of their previous political 
 beliefs. Take, for instance, one of the Virginia Coupon 
 Cases. When the question of the right of the holders of the 
 Virginia coupons to pay them in for taxes, and to compel the 
 State to receive them as such, was brought before the Supreme 
 Court, the eight Republican judges divided evenly on the 
 point whether the State was, or was not, protected by the Xlth 
 Amendment, and it was Justice Field, the Democratic justice, 
 who threw the casting vote against the States' right doctrine. 
 
 The only weak point in the constitution of the federal 
 judiciary, rendering it liable to political tamperings from the 
 legislature, has been the power possessed by Congress to regu- 
 late the number of justices, a power that it has several times 
 exercised. The Federalists, in 1801, changed the number of 
 federal judges for political reasons. In 1866, Congress reduced 
 the number of Supreme Court justices from ten to seven in 
 order to deprive President Johnson of the opportunity of 
 making appointments. After all fears of Johnson's recon- 
 struction policy was over, the act of 1869 was passed, by 
 which the number of justices was raised to nine. The influ- 
 ence the appointment of the two new justices under this last 
 act had upon the legal tender decisions, gave rise to the sus- 
 picion that the two new justices, Strong and Bradley, received 
 their appointments because of their known or suspected 
 opinions regarding the constitutionality of a legal tender issue. 
 
 Once in the history of the court its Chief Justice has been 
 called upon to preside at an impeachment trial — that of Pres- 
 ident Johnson. 
 
 In 1877, five of the court were called upon to act in con- 
 junction with five senators and five representatives, on an 
 electoral commission, to decide regarding the result of the 
 
104 The Sup'eme Court of the United States. 
 
 previous presidential election in several of the Southern States. 
 While serving in this capacity the justices were acting in an 
 extraordinary capacity. The commission was a political cre- 
 ation, and its duty was the decision of a political question. 
 
 The investigation of the part the Supreme Court has played 
 in politics gives us few, if any, very disagreeable results, but 
 tends rather to heighten our admiration and reverence for this 
 institution. We find that in addition to having been eminently 
 wise it has been, upon the whole, extremely impartial. With 
 surprising consistency the court has refused to consider ques- 
 tions of a political nature. What direct influence the politics 
 of the day have had upon it, has resulted from tamperings 
 from the outside, and not from corruption in its members. 
 " Throughout the whole history of the court," says Alexander 
 Johnston, " there has never been the faintest suspicion upon 
 the integrity of the Supreme Court justices." 1 Yielding not 
 to the passions of the day, nor to partisan influence, the 
 Supreme Court has nevertheless, by gradual changes, kept in 
 touch with the people. Only once in its long history has its 
 decision failed to impress the people, as a whole, as correct. 
 Like a glacier it is (to use the characterization of Von Hoist) 
 "stiff and firm, and yet moving forward, and, as it slides 
 down, always adapting itself to the bed on which it lies." 2 
 
 1 Lalor's Ency. Pol. Sci., Art. Judiciary. 
 * Const. Hist. U. 8., Ill, 157. 
 
CHAPTER IX. 
 
 Present Condition and Needs of the Supreme Court. 
 
 The number of Justices of the Supreme Court has been 
 changed several times. The Judiciary Act provided for a 
 chief justice and five associate justices. At present there 
 are nine justices, and the incumbents are : Melville Fuller, 
 Chief Justice ; Miller, Field, Bradley, Harlan, Gray, Blatch- 
 ford, Lamar and Brewer, Associate Justices. 
 
 Until 1869, with the exception of a few months in 1801, 
 the Supreme Court Justices had circuit duty to perform. By 
 the act of that year, a judge for each circuit was provided for, 
 and the Supreme Court Justices relieved from much of their 
 circuit work. The Supreme Court Justices still go upon cir- 
 cuit, but only to try the more important cases. Another 
 provision of the act of 1869, was one permitting a justice to 
 retire with full pay, when seventy years of age, and after ten 
 years of service. 
 
 The Chief Justice now receives a salary of $10,500 per 
 annum, and his Associates $10,000 each. 
 
 The Supreme Court holds annual terms, beginning the 
 second Monday of October, and lasting till May. Daily ses- 
 sions, with the exception of Saturdays and Sundays, are held, 
 beginning at 12 m. The Court sits in the Capitol building 
 at Washington, in the room which was formerly the Senate 
 Chamber. The opening of the Court is announced by the 
 crier : " Oyez ! Oyez ! Oyez ! All persons having business 
 before the Honorable Supreme Court of the United States are 
 
 105 
 
106 The Supreme Court of the United States. 
 
 admonished to draw near and give their attention, for the 
 court is now sitting. God save the United States and this 
 honorable Court!" 
 
 The Supreme Court works with exceedingly little friction. 
 Quietness, solemnity, dignity, and rapidity, characterize its 
 proceedings. Arguments are made in a low ordinary tone of 
 voice, are short, and offer no opportunity for display of ora- 
 tory or brilliant rhetoric. 
 
 The cost of carrying a case through the Supreme Court is 
 comparatively slight. The court fees are very small; the 
 main expenses are for counsel fees and printing the record. 
 
 Every Saturday morning the justices meet in consultation 
 and decide cases argued during the week. In hearing a case, 
 six of the nine justices constitute a quorum, and decisions are 
 governed by a majority vote. One justice from the majority 
 in each case is selected to prepare a written opinion. Dissent- 
 ing opinions are also freqently prepared and read. Decisions 
 are announced on Monday mornings. 
 
 All decisions by the Supreme Court are, of course, final. 
 No mode is provided by which any superior tribunal can 
 reexamine what the Supreme Court has decided. The case is 
 not only settled, but the principles of the decision remain as 
 precedents for the settlement of cases of similar nature, which 
 may arise in the future. These precedents are sometimes, 
 though very seldom, disregarded. Until the end of the ses- 
 sion, any case decided during that session is considered as 
 being still " in the bosom of the Court," and upon sufficient 
 cause being shown, a re-hearing is sometimes allowed. The 
 Supreme Court cannot again hear a case decided by it during 
 a previous session, though a new case, involving the same 
 questions may be heard, and, despite precedent, obtain a con- 
 trary decision. 
 
 In cases at law brought by writ of error to the Supreme 
 Court only the bill of exceptions is reviewed, and, if material 
 errors in the ruling of the lower court are discovered, the case 
 is remanded for a new trial ; if no such errors are proven, the 
 
The Supreme Court of the United States. 107 
 
 decision is affirmed. In appellate cases in equity, the whole 
 record of the case is submitted, and the cause finally decided. 
 When a State is summoned to respond to a complaint, a sub- 
 poena is issued on the Governor and Attorney-General of the 
 State. The Attorney-General then appears and answers. 
 
 During the early years of the history of this Court, the 
 amount of business transacted was very small. In 1801, at 
 the accession of Chief Justice Marshall, there were only ten * 
 cases awaiting a hearing. The next five years the entire num- 
 ber of cases decided was 120. From 1820 to 1830 the 
 aggregate number was 259, an average of 58 a year. From 
 1830 to 1850 there was a gradual increase. From 1845 to 
 1850 the average number of cases heard per year was 71. 
 Since 1850 the increase has been rapid. From 1875 to 1880, 
 1,955 cases were heard and decided. 
 
 The last report of the Attorney General (1889) showed that 
 the total number of cases on the docket at the beginning of 
 the October term of 1888, was 2,571. Of this number, only 
 423 were disposed of. 
 
 But 423 cases were decided by the Supreme Court duriDg 
 the last year (1888-89), and the Court is therefore so far 
 behind-hand in its work that it takes from three to four years 
 for a case to come up for trial, after having been entered upon 
 the docket. The large majority of its cases are those brought 
 thither by appeal from the lower federal courts. Those cases 
 requiring its original jurisdiction are now very few in number. 
 
 The causes that have given rise to this increase of the 
 Court's business are numerous. First, there has been the 
 growth of our territory, wealth, and population. Also, there 
 is the wonderful growth of our railroads and telegraphs, most 
 of them crossing State lines, which yearly give rise to a large 
 number of cases. Then, also, there has been the large number 
 of claim cases since the establishment of the Court of Claims. 
 
 1 The following figures are taken from an article by Associate Justice 
 William Strong. N. Am. Review, May, 1881. 
 
108 The Supreme Court of the United States. 
 
 Cases involving patents and copyrights form a considerable 
 portion of the business of the Court, and these are classes of 
 cases which have of late greatly increased, and will continue 
 to increase. But in addition to these, Congress, since 1850, 
 by numerous acts, especially by that of 1875, has not only 
 greatly enlarged the jurisdiction of the lower federal courts, 
 but has widened the class of cases that may be removed from 
 state to national courts. All of these causes, together with 
 other minor ones, have operated to increase the business of the 
 Supreme Court, until now it is nearly overwhelmed with 
 accumulated work, and this, notwithstanding the fact that 
 our Supreme Court Justices are among the hardest worked 
 of our public officials. During seven months, instead of 
 three, as formerly, they are in continuous session ; and in 
 addition to this, they have circuit duty to perform. 
 
 It is folly and injustice to continue yearly to pile upon this 
 Court a much larger amount of business than it can by any 
 possibility perform. Relief cannot come from the Court 
 itself, nor can we expect a diminution of the appeals from the 
 lower courts. Narrowing the jurisdiction of the lower federal 
 courts is not possible nor desirable. Relief must come from 
 Congress. 
 
 Various plans have been suggested. One is for a division 
 of the Court into sections, with or without an increase in the 
 number of justices; each section hearing particular classes of 
 cases. Of this character was a bill introduced by Mr. Man- 
 ning, of Mississippi, in the House of Representatives, June 26, 
 1880. By this bill there was to be a triple division of the 
 Court, giving equity cases to the first division, common law 
 cases to the second, and revenue and admiralty cases to the 
 third division ; the general Court to hear all cases requiring a 
 construction of the constitution or treaties. The objection to 
 this plan is that it is of doubtful constitutionality. The con- 
 stitution provides for the establishment of a single Supreme 
 Court, and it may properly be questioned whether such a plan 
 as this would not be in contravention to that provision. 
 
The Supreme Court of the United States. 109 
 
 There is also this objection to the plan. Anything that will 
 tend to lessen the people's regard and confidence in the 
 Supreme Court is to be deprecated, and it is extremely proba- 
 ble that a division of the Court, whereby suitors would obtain 
 the benefit of the learning of only a part of the Justices, would 
 have this result. 
 
 A second mode of relief that has been suggested, is simply 
 the raising of the limit of the pecuniary amount that must be 
 involved in order that cases may be appealed to the Supreme 
 Court from the inferior federal courts. The strongest objec- 
 tion to this is, that it amounts to a denial of the benefit of the 
 judgment of the Supreme Court to all suitors claiming sums 
 less than the minimum. The limit is now $5,000, instead of 
 $2,000, as at first, and it is already claimed, for this reason, 
 that the Supreme Court is provided only for the rich people. 
 
 A third plan, and one which seems to meet with the most 
 favor from lawyers, is the establishment of courts of appeal 
 in each of the circuits, intermediate between the Supreme and 
 circuit courts ; these courts to have final jurisdiction in all cases 
 of a specified character. 
 
 It now seems, happily, that the Supreme Court is soon to 
 obtain relief by a plan of this character. A bill by which 
 radical relief is to be afforded the Supreme Court, as well as 
 the circuit courts, whose dockets are also sadly overcrowded, 
 passed the House in April, 1890, and is now in the Senate, 
 and it is generally believed will obtain the assent of that 
 body also. Those provisions of the bill, which are important 
 to us, are as follows : 
 
 The district courts are hereafter to exercise, in addition to 
 the jurisdiction conferred upon them by existing law, all the 
 original jurisdiction now vested by law in the circuit courts. 
 
 In each circuit except the second, there are to be appointed 
 by the President two additional circuit judges, and for the 
 second circuit one additional judge ; and the circuit court in 
 each circuit is to consist of the three judges thereof. To the 
 circuit courts will come, as formerly, all appeals from cases in 
 
110 The Supreme Court of the United States. 
 
 the district courts. Cases removable from a state court into a 
 circuit court of the United States, under existing provisions of 
 law, are to be removed under this act into the district courts. 
 The judgments and decrees of the circuit courts, in all cases 
 in which jurisdiction is acquired by the district court by citi- 
 zenship of the parties only, and in which no question arises 
 under the constitution, laws, or treaties of the United States, 
 are to be final and conclusive, unless the circuit court, or two 
 judges thereof, certify to the Supreme Court that the question 
 involved is of such novelty, difficulty, or importance, as to 
 require a decision by the Supreme Court. All questions that 
 have been differently decided in different circuit courts are to 
 be thus certified to the Supreme Court. 
 
 Appeal to the Supreme Court is to be allowed from any 
 decree of a circuit court not made final by the provisions of 
 this act. 
 
 No writ of error from, or appeal to, the Supreme Court is 
 to be allowed in any case decided by the Supreme Court of 
 the District of Columbia except in cases where the United 
 States, or some officer thereof, is a party, or where is involved 
 a construction of the constitution, treaties or laws of the 
 United States. 
 
CHAPTER X. 
 
 Conclusion. 
 
 The causes determined by the Supreme Court of the United 
 States may be placed under two heads : those in which the 
 court acquires jurisdiction by reason of the character of the 
 parties, independently of the subject of controversy ; and 
 those over which the authority of the court extends solely on 
 account of the nature of the subject involved. It has been 
 in the adjudication of suits of the second class, that the court 
 has exercised its highest and most characteristic powers, and 
 in which have been settled the great questions of constitutional 
 and general interest. It will be noticed that in the plan for 
 relief of the Supreme Court outlined in the last chapter, and 
 for the congressional enactment of which there is the strongest 
 probability, the full action of the court in this latter class of 
 cases was not in any way limited. 
 
 The power of the Supreme Court to disregard, in its decis- 
 ions, any act of Congress considered by them a contravention 
 of the constitution, has been the ground for the claim by many 
 that the federal judicial department possesses dangerous powers ; 
 that it is thus, as it were, raised above the two other branches, 
 and made the dictator to them, of the extent to which they 
 shall exercise their powers. That this claim is unfounded is 
 apparent to anyone acquainted with our system of government. 
 The judiciary, from the very nature of its functions, is the 
 department to be the least feared, lest it should assume unwar- 
 
 111 
 
112 The Supreme Court of the United States. 
 
 ranted powers, or, having assumed them, be able to carry them 
 into operation. The constitution, by its separation of powers, 
 necessarily withdraws from the judicial branch all powers 
 except those of a strictly judicial nature. Hamilton argued 
 in the Federalist : " It may truly be said to have neither 
 force nor will, but merely judgment, and must ultimately 
 depend upon the aid of the executive arm for the efficacious 
 exercise even of this faculty." How true this is was strikingly 
 shown in the failure of the court to obtain its will in the 
 Cherokee cases, the chief executive refusing his assistance. 
 The very form of the Supreme Court, and all of its appellate 
 jurisdiction rests upon legislative enactments. With no exec- 
 utive force at its back, and without the means of extending 
 its influence either by patronage or command of the public 
 revenues, it relies, for the execution of its decrees, upon 
 the legal spirit, and reverence for law of the people, and 
 upon their confidence in its justice, and their faith in its 
 wisdom. 
 
 This, then, is the check upon the Supreme Court. Relying 
 for strength, as it does, upon the good will of the people, the 
 court is obliged to use every means possible to deserve and 
 keep this confidence, by declining to give judgments of a 
 political nature, and in other ways using every means possible 
 to exclude from its bench all taint of partisan bias. It must 
 sustain its reputation for wisdom by careful and thorough 
 investigation and consideration of all doubtful points. It 
 must be strong, stable, conservative — protecting itself against 
 the attacks of the other departments of government, and 
 resisting impulses and passions of the moment. 
 
 "Federalism means legalism, — the predominance of the 
 judiciary in the constitution," says Dicey. A federal govern- 
 ment can endure only among a people thoroughly imbued 
 with a reverence for law. To the fact that more than any 
 other nation in the world, the people of the United States pos- 
 sess this law-abiding spirit, do we owe the unequalled success 
 
The Supreme Court of the United States. 113 
 
 of our federal republic. Obedience to the rule of law is char- 
 acteristic of all Teutonic folk. 
 
 To that spirit of extreme and blind laudation of the consti- 
 tution, which, beginning so suddenly at the adoption of that 
 instrument, lasted so long, has of late years succeeded a 
 spirit of more impartial, searching, and even adverse criti- 
 cism. Looking through the glasses of a century's experience, 
 we now admit that the form of government provided by the 
 convention though probably the best outline of government 
 then attainable under the circumstances of that time, has not 
 been in all respects entirely successful. Some provisions of 
 the constitution have never operated as intended, and have 
 been tacitly changed, and others have been modified by con- 
 stitutional process. 
 
 The Chief Executive exercises to-day a far different influ- 
 ence in our constitutional system from that he was expected to 
 wield, and did wield during the first years of our history. 
 Compare the president of our day, with his time almost com- 
 pletely occupied with the dispensation of his official patronage, 
 and with his recommendations to Congress, scarcely noticed if 
 that body happens to be of a different political complexion 
 from his own ; with our first Presidents, Washington, Adams 
 and Jefferson, who stamped the entire administration, domestic 
 and foreign, with the imprint of their own individual opinions 
 and will. 
 
 Congress, too, with its committee method of legislation, is 
 being subjected to severe criticism by a certain school of 
 writers, and the opinion is expressed by many that it is not 
 proving itself able to deal satisfactorily with the increased 
 demands made upon it by a growing country. 
 
 In the midst of criticism, almost hostile in its intent, the 
 federal judiciary has remained unattacked. Mr. Curtis, in the 
 recent edition of his Constitutional History of the United 
 States, does not find it necessary to qualify the statement that 
 "the judicial power of the United States, considered with 
 
114 The Supreme Court of the United States. 
 
 reference to its adaptation to the purposes of its creation, is one 
 of the most admirable and felicitous structures that human 
 governments have exhibited." l Professor Woodrow Wilson 
 in his critical analysis of the working of our government, 2 sub- 
 jects the executive and Congress to most severe criticism, and 
 find much that might be bettered. Concerning the judiciary, 
 however, he does not find it necessary to animadvert. 
 
 The Supreme Court is one hundred years old, and during 
 this time, but one change in the field of its jurisdiction, and 
 none in the nature of its powers has been found necessary. 
 Its very form has remained without substantial change since 
 its creation by the Judiciary Act of 1789. For a century this 
 court has performed with exactness all the duties required of it. 
 Since its inception, it has been the firm supporter of that 
 instrument which created it. Scarcely ever has it been out of 
 touch with the people. Its bar has numbered among its mem- 
 bers men of the highest intellect : Webster, Marshall, Pink- 
 ney, Wirt. Its justices have been men whose greatness the 
 world has recognized, and whom the United States has been 
 proud to call her own. To-day the Supreme Court stands 
 the highest judicial tribunal in the world's history. "It is 
 a court," says Justice Miller, " which, whether we take the 
 character of the suitors that are brought before it, or the 
 importance of the subjects of litigation over which it has final 
 jurisdiction, may well be considered one of the highest that the 
 world has ever seen. It has the power to bring States before 
 it, States which some of our politicians have been in the habit 
 of considering sovereign, not only when they come voluntarily 
 but by judicial process they are subjected in certain cases 
 to the judgment of the court. Whatever these States may 
 have been at the time of the formation of the constitution, they 
 now number their inhabitants by millions, and in wealth and 
 
 1 P. 585. 2 Congressional Government. 
 
The Swpreme Court of the United States. 11-6 
 
 civilization are equal to many of the independent sovereignties 
 of Europe. The subject-matter of which the court has juris- 
 diction is the construction and exposition of the constitution of 
 the United States, which controls the affairs of sixty millions 
 of people." * 
 
 That which should be a matter of especial congratulation 
 to us in reviewing the history of the federal judiciary, is that 
 of all our great institutions, the Supreme Court is most 
 distinctly the product of American genius, and that its suc- 
 cess is a direct testimony to the high political ability of our 
 American people. 
 
 " God save the United States, and this Honorable Court." 
 
 1 Address before the Alumni of the Law Dept. of the Univ. of Mich., 
 June 29, 1887. 
 
KEY TO U. S. SUPREME COURT REPORTS. 
 
 The reports of decisions in cases tried before the Supreme Court are con- 
 tained in one hundred and thirty-three volumes. In important cases the 
 briefs of counsel as well as opinions of the justices are given. Until 1875 these 
 volumes were known by the names of the reporter. Since then they have 
 been designated simply as United States Reports. The following is a list 
 of the reporters, abbreviations, number of volumes, and periods covered : 
 
 Reporters. 
 
 Abbreviations. 
 
 Vols. 
 
 Period Covered. 
 
 Dallas* 
 
 Dall. 
 
 4 
 
 1790-1800 
 
 Cranch 
 
 Cranch 
 
 9 
 
 1801-1815 
 
 Wheaton 
 
 Wheat. 
 
 12 
 
 1816-1827 
 
 Peters 
 
 Pet. 
 
 16 
 
 1828-1842 
 
 Howard 
 
 How. 
 
 24 
 
 1843-1860 
 
 Black 
 
 Black 
 
 2 
 
 1861-1862 
 
 Wallace 
 
 Wall. 
 
 23 
 
 1863-1874 
 
 United States Reports 
 
 91-133 U. S. 
 
 43 
 
 1875-1890 
 
 * The first volume of Dallas contains only decisions of Pennsylvania Courts, 1754-1789. 
 
 117 
 
TABLE OF CASES. 
 
 Ableman v. Booth, 46, 50, 59. 
 
 B 
 
 Bank of U. S., v. Planter's Bank of 
 
 Ga., 53 (note). 
 Bayard v. Singleton, 31. 
 Briscoe v. Bank of Ky., 39, 46, 93. 
 
 c 
 
 Calder v. Bull, 54, 67. 
 Cherokee Nation v. Ga., 62. 
 Chisholm v. Ga., 21, 45, 52, 53, 85. 
 Cohens v. Virginia, 56. 
 Commonwealth v. Caton, 29. 
 
 D 
 
 Dartmouth College v. Woodward, 60. 
 
 F 
 
 Fletcher v. Peck, 38, 60. 
 Foster v. Neilson, 81. 
 
 G 
 
 Gelston v. Hoyt, 81 (note). 
 Georgia v. Stanton, 81 (note). 
 Gibbons v. Ogden, 42, 60. 
 
 H 
 
 Hayburn's Case, 39, 79. 
 Hollingsworth v. Va., 52 (note). 
 Holmes v. Walton, 31. 
 
 K 
 
 Kansas Indian Case, 81 (note). 
 Kendall v. U. S., 80. 
 Kentucky v. Dennison, 82. 
 Knox v, Lee, 38. 
 
 Leisky <& Co., v. Hardin, 61. 
 Luther v. Borden, 81. 
 
 M 
 
 Marbury v. Madison, 39, 75, 79. 
 Martin v. Hunter's Lessee, 55, 64, 65. 
 McCulloch o. Maryland, 41, 45, 59, 
 71. 
 
 N 
 
 New Hamp. v. La., 52 (note). 
 New York v. La., 52 (note). 
 New York v. Wilson, 60. 
 
 o 
 
 Ogden v. Saunders, 90. 
 Osborn v. Bank of U. S., 53. 
 
 Providence Bank v. Billings, 60 
 (note). 
 
 R 
 
 Kutger's v. Waddington, 31. 
 119 
 
120 
 
 Table of Oases. 
 
 S 
 
 Scott v. Sanford, 46, 49, 95-9. 
 Slaughter House Oases, 63. 
 Sturges u. Crowninshield, 60 (note), 
 65. 
 
 Talbot v. Hudson, 38. 
 Territt v. Taylor, 60. 
 Texas v. White, 47, 102. 
 Trevitt v. Weeden, 12, 31. 
 
 U 
 
 U. S. v. Anderson, 81 (note). 
 
 U. S. n. Fisher, 42. 
 
 U. S. v. Holliday, 81 (note). 
 
 U. S. v. Kagoma, 62. 
 
 U. S. v. Peters, 53 (note), 54. 
 
 w 
 
 Wabash R. E. v. 111., 61. 
 Williamsu. Suffolk Ins. Co., 81 (note) . 
 Winthrop v. Lechemere, 2. 
 Wooster v. Georgia, 62, 93-4. 
 
INDEX. 
 
 Adams, Henry, quoted,. 88, 91. 
 
 Adams, J. Q., diary of, quoted, 90, 93. 
 
 Alien and sedition acts, 36. 
 
 Articles of Confederation, judicial 
 powers of, 4 ; defects of, 7. 
 
 Ashley, speech quoted, showing the 
 Supreme Court to have been con- 
 trolled by the slave power, 96-8. 
 
 Assemblies, appeal to, from colon- 
 ial courts, and appeal from, to the 
 Crown, 3. 
 
 B 
 
 Bancroft, quoted, 77. 
 
 Bank, U. S., bill for recharter of, 
 vetoed by Jackson, 71. 
 
 Brearley, Chief Justice, Supreme 
 Court of New York, declares 
 law unconstitutional, -29. 
 
 c 
 
 Calhoun, his attitude towards the 
 federal judiciary, 96 (and note). 
 
 Chamberlain, D. H., quoted, 65. 
 
 Chase, Chief Justice, his theory of 
 our natural sovereignty, 47 ; ap- 
 pointment of, 100. 
 
 Chase, Judge, impeachment of, 90-92. 
 
 Circuit Courts, established by judici- 
 ary act, 23. 
 
 Civil War, constitutional questions 
 arising from, 101. 
 
 Claims, Court of, 26. 
 
 Common Law, brought from Eng- 
 land, 2. 
 
 Congress, most needing a check, 33- 
 34 ; acts of, presumably valid, 36 ; 
 
 grounds upon which its acts may 
 be declared void by the Supreme 
 Court, 35-39 ; act of, first declared 
 unconstitutional, 39; may select 
 the means for the exercise of its 
 powers, 41. 
 
 Constitutional Convention, 4. 
 
 Contracts, inviolability of, 60. 
 
 Cooley, quoted, 35, 54. 
 
 Court of Claims, 26. 
 
 Courts, colonial, 3. 
 
 Court of Appeal in Cases of Capture, 
 establishment of, 5 ; dissolution of, 
 6; relation of, to the Supreme 
 Court, 6. 
 
 Cushing, Wm, Chief Justice, 85. 
 
 D 
 
 De Lolme, quoted, 28. 
 
 Democratic Party, its attitude to- 
 wards the federal judiciary, 92-5. 
 
 Detail, report of Committee of, 13- 
 14 ; defects of report, 14-15. 
 
 Dicey, quoted, 36, 112. 
 
 District of Columbia, courts of, 25. 
 
 District Courts, establishment of, by 
 judiciary act, 23. 
 
 Dred Scott decision, 95-100. 
 
 E 
 
 Electoral Commission, 103. 
 
 Eleventh Amendment, 52, 53 (and 
 note). 
 
 Ellsworth, Oliver, 22, 86. 
 
 Executive, relation of, to the judi- 
 ciary, 70-78 ; when acts of, review- 
 able by the Supreme Court, 79-80. 
 
 121 
 
122 
 
 Index. 
 
 F 
 
 Federalist, quoted, 5, 8, 34. 
 
 Fourteenth Amendment, construc- 
 tion of, by the Supreme Court, 
 62-3. 
 
 Fuller, Chief Justice, 100. 
 
 G 
 
 Georgia, refuses obedience to decis- 
 ion of the Supreme Court in Chis- 
 holrn v. Georgia, 52 ; Action in the 
 Cherokee Cases, 81, 93-94. 
 
 Government cannot exist with com- 
 plete separation and independence 
 of powers, 69. 
 
 H 
 
 Hamilton, his plan for national gov- 
 ernment, 11. 
 
 Impeachment of national officers, 
 taken from the judiciary, 11. 
 
 Implied powers, attitude of Supreme 
 Court towards, 40-2. 
 
 Indians, their legal status as deter- 
 mined by the Supreme Court, 62. 
 
 Interstate Commerce, how defined 
 by Supreme Court, 60-2. 
 
 Jackson, President, veto of Bank 
 bill, 71. 
 
 Jay, Chief Justice, his theory of our 
 national sovereignty, 45, 53; a 
 strong federalist, 84; his services 
 as Chief Justice, 85. 
 
 Jameson, Prof. J. F., his History of 
 the Old Federal Court of Appeals, 
 quoted, 5. 
 
 Jefferson, Thomas, attitude towards 
 the federal judiciary, 88-90 ; works 
 of, quoted, 92. 
 
 Johnson, President, attempted im- 
 peachment of, just, 75. 
 
 Judges, colonial, 3. 
 
 Judiciary Act, 22-3. 
 
 Judiciary, colonial, 3. 
 
 Judiciary, national, as provided for 
 in Randolph's plan, 9 ; in Pinck- 
 ney's, 10; in Paterson's, 10; in 
 Hamilton's, 11; as reported by 
 Committee on Detail, 13 ; as 
 adopted, 15; attacked in state con- 
 ventions by Grayson, Mason, and 
 Henry, and defended by Wilson, 
 Madison, Marshall, and Dane, 18- 
 20; organization of, 23; jurisdic- 
 tion of, 23-26; attacks upon, by 
 state's rights party, 51, 54-55 ; 
 exercise of ministerial functions 
 never attempted by, 79; law of 
 1801, 86 ; attitude of republicans 
 towards, 87 ; attitude of Randolph 
 towards, 90-92. 
 
 Jurisdiction, of Supreme Court, 23- 
 26 ; when exclusive of, and when 
 concurrent with, that of state 
 courts, 64-67. 
 
 K 
 
 Kendall, P. M.-Oen., performance 
 of ministerial duty by, compelled 
 by Supreme Court, 81. 
 
 Kent, letter of, quoted, 94. 
 
 Law, four grades of, in the United 
 States, 35 ; grounds upon which 
 it may be held void, 37-39. 
 
 Legal Tender Decisions, 103. 
 
 Lincoln, President, refuses obedience 
 to decisions in the Merryman case, 
 75, opinion of, as to the finality of 
 the Dred Scott decision, 76. 
 
 M 
 
 Madison, letter of, quoted, 77. 
 
 Maine, Sir Henry, quoted, 1. 
 
 Marshall, Chief justice, opinion of, 
 in Fletcher v. Peck, 38 ; opinion of, 
 in Marbury v. Madison, 40; his 
 theory of our national sovereign- 
 ty, 45-46 ; opinion of, in Cohens v. 
 Va., 57-59 ; opinion of, in McOul- 
 loch v. Md., 45 ; his character and 
 service, 89 ; amount of work per- 
 formed by, 90. 
 
Index. 
 
 123 
 
 Merryman Case, 75. 
 
 Miller, Asso. Justice., opinion of, 
 quoted, 61, 63; opinion of, in 
 Slaughter House Cases, 63 ; lec- 
 ture of, quoted, 114. 
 
 Missouri Compromise, 36. 
 
 o 
 
 "Original Package,' 
 garding, 61. 
 
 decision re- 
 
 Paterson, plan of, for national gov- 
 ernment, 10. 
 
 Pinckney, Chas., plan of, for national 
 government, 10. 
 
 Pickering, Judge, impeachment of, 
 91. 
 
 Political Acts, not reviewable by the 
 judiciary, 79. 
 
 President, his relation to the judi- 
 ciary, 70-80 ; has the right to veto 
 an act of Congress on the ground 
 of unconstitutionality, 70-1 ; has 
 not the right to refuse to execute 
 a law because he deems it uncon- 
 stitutional, 71-4; has not the 
 right to refuse obedience to decis- 
 ions of a federal court, 74-8 ; his 
 acts not reviewable by the judici- 
 ary, when of a political nature, 
 79-81. 
 
 Privy Council, 4. 
 
 R 
 
 Randolph, Edmund, fifteen propo- 
 sitions of, 9 ; proposes a council 
 of revision of national laws, 13. 
 
 Randolph, John, his attitude to- 
 wards the federal judiciary, 90-1. 
 
 Reconstruction, a political question, 
 81; its constitutionality consid- 
 ered, 101-2. 
 
 Republican Party, attitude towards 
 the federal judiciary, 87, 90-91. 
 
 Rutledge, John, Chief Justice, 85. 
 
 8 
 
 Schurz, Secretary, performance of 
 ministerial duty by, compelled 
 by the Supreme Court, 81. 
 
 Sovereignty, theory of our national 
 sovereignty, 35 ; as enunciated by 
 Jay, 45, 53 ; by Marshall, 45-46 ; 
 by Taney, 46; by Chase, 47; as 
 declared in Ckisholm v. Georgia, 53. 
 
 States, efforts of to hinder the federal 
 judiciary, 51-59 ; suability of, 52- 
 53 (and note), 57. 
 
 State Courts, power of Supreme 
 Court to revise decisions of, 24r- 
 25 ; this power denied by Vir- 
 ginia, 55-59 ; where jurisdiction 
 of, concurrent with that of federal 
 courts. 64-65 ; no connection with 
 federal judicial system, 82. 
 
 State Law, negation of, by national 
 legislature proposed in constitu- 
 tional convention, opposed by Gov- 
 erneur Morris and Luther Martin, 
 and advocated by Madison, 1 1-13 ; 
 power of Supreme Court to declare 
 void, 54 ; this power opposed by 
 Pennsylvania, 54; State Law re- 
 spected by federal courts when 
 not repugnant to federal law, 66. 
 
 Story, Justice, opinion of, in Martin 
 v. Hunter's Lessee, 56, 64-65; let- 
 ter of, quoted, 94. 
 
 Strong, Justice, opinion of, quoted, 38. 
 
 Supreme Court, necessity of, 7-9 ; 
 established by judiciary act, 23 ; 
 jurisdiction of, 16, 24; power to 
 reverse decisions of state courts 
 given by judiciary act, 24-5 ; no 
 European prototype, 27 ; a power- 
 ful "check" in the national gov- 
 ernment, 33 ; power of, to nullify 
 unconstitutional legislation, upon 
 what grounds exercised, 35-9; 
 first exercised in Marbury v. Mad- 
 ison, 39-40 ; objects to be subserved 
 by, 43-4 ; its authority over state 
 courts resisted by Penn., 54; by 
 Va., 55-6 ; by Ga., 52 ; operates 
 as a check against too great cen- 
 tralization, 62-4 ; jurisdiction, 
 when concurrent with that of state 
 courts, and when exclusive, 64r-5 
 finality of its decisions as a con 
 stitutional interpretation, 75-8 
 opinion of Lincoln upon this point, 
 76 ; of Bancroft, 77 ; of Madison 
 77-8 ; in what cases it may inter- 
 fere to command the performance 
 of executive duties, 79-80; not 
 
124 
 
 Index. 
 
 always successful in obtaining en- 
 forcement of its decisions, 81 ; 
 claimed by Ashley and Von Hoist, 
 to have been controlled by the 
 slave-owning class, 96-8 ; its jus- 
 tices relieved of most of their cir- 
 cuit work, 105 ; annual term, 105 ; 
 amount of work done annually, 
 107 ; behindhand in its work, 107 ; 
 plans for relief of, 108-110 ; does 
 not possess dangerous powers, 112 ; 
 causes of the increase in its busi- 
 ness, 107. 
 
 Taney, Chief Justice, his theory of 
 our national sovereignty, 46-47, 
 49, opinion of, in Ableman v. Booth, 
 50 ; opinion of, 82 ; term of office, 
 100. 
 
 Taylor, Hannis, quoted, 1. 
 
 Territorial Courts, 25. 
 
 Thirteenth Amendment, construc- 
 tion of, by the Supreme Court, 62- 
 63. 
 
 Virginia, denies the supremacy of 
 the Supreme Court over her 
 courts, 55-9. 
 
 Virginia Coupon Cases, 77. 
 
 Von Hoist, his treatment of the 
 Dred Scott decision, 96-8. 
 
 w 
 
 Waite, Chief Justice, 100. 
 Washington, George, quotations from 
 papers of, 5.