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ï~~t
ï~~THE SUPREME COURT
OF THE
UNITED STATES:
ITS
HISTORY
BY
HAMPTON L. CARSON,
Of the Philadelphia Bar,
AND ITS
CENTENNIAL CELEBRATION,
FEBRUARY 4rTH, 1890.
PREPARED UNDER DIRECTION OF
THE JUDICIARY CENTENNIAL COMMITTEE.
PHILADELPHIA:
JOHN Y. HUBER COMPANY.
1891.
ï~~" What, sir, is the Supreme Court of the United States? It is the august representative of the wisdom and justice and conscience of this whole people, in the exposition of their Constitution and laws. It is the peaceful and venerable arbitrator
between the citizens in all questions touching the extent and sway of Constitutional
power. It is the great moral substitute for force in controversies between the People,
the States and the Union."--HORACE BINNEY.
Copyright, 1891, by Hampton L. Carson.
PRESS OF JAS. B. RODGERS PRINTING CO.,
PH ILADELPRIA.
ï~~TO
THE CHIEF JUSTICE AND ASSOCIATE JUSTICES
OF
THE SUPREME COURT OF THE UNITED STATES
THIS VOLUME
IS
RESPECTFULLY DEDICATED.
ï~~
ï~~PREFACE.
THE following History of the Supreme Court of the United
States is published under the direction and authority of the
Judiciary Centennial Committee of The New York State Bar
Association, together with The Proceedings in Commemoration of
the Centennial Anniversary of the Organization of the Court.
About two years ago the author succeeded in completing an interesting collection of the portraits and autograph letters of the
members of the Court, and had made some progress in the arrangement of matter with the intention of writing a History-the plan
meeting with the warm encouragement of the late Mr. Justice Miller
-when through an accident, which he will ever regard as fortunate,
he was brought in contact, through William Allen Butler, Esq.,
of the New York bar, with the Judiciary Centennial Committee, and
the result of several conferences was the determination to publish
conjointly the notable addresses delivered in New York City on
February 4, 1890, and a sketch of the labors of the Court during
the first one hundred years of its existence, in a volume which it is
hoped will prove an interesting monument.
It is not a Treatise upon Constitutional Law that has been
attempted. The subject has been treated chronologically. Topics
and doctrines illustrative of different phases of our national growth
are presented in the exact order of their occurrence and in natural sequence, displaying each epoch in contrast with those which
precede and follow it, thus affording convenient opportunities of introducing at intervals, and not in mass, biographical sketches of the
Judges. Spirit, movement and variety are thus sought to be imparted
ï~~vi
PR EFA CE.
to the narrative, and the activity of the Court as a powerful agent
in promoting our development as a Nation portrayed.
The writer desires to express his grateful acknowledgments to
the Chief Justice and Associate Justices of the Court for their active
interest and sympathy and for the contribution of important and
authentic matter, as well as for permission to use the seal of the Court
as a device upon the covers of the book. His acknowledgments are
also due to Mr. James H. McKenney, the Clerk of the Court, and his
assistants for their courtesy and aid; to Hon. Win. H. Taft, SolicitorGeneral of the United States; to William Henry Clifford, Esq., of
the Portland bar; to A. M. Waddell and Iredell Meares, Esqs., of
the bar of Wilmington, N. C." to William S. Stryker, AdjutantGeneral of the State of New Jersey; to Mr. Talcott Williams, of
Philadelphia, and to Mr. Frederick D. Stone, the Librarian of the
Historical Society of Pennsylvania; to Mrs. Beck, the daughter of
the late Mr. Justice Grier, and to Miss Baker, of Philadelphia, for
most substantial assistance in the collection of biographical and historical data; to the Judiciary Centennial Committee, and particularly
to Hon. William H. Arnoux, for the Account of the Commemorative
Proceedings. To the late Mr. Justice Miller and to the late Hon.
H. I. Todd, of Louisville, Ky., he also confesses himself a debtor.
His special thanks are due to his friend, Professor John P. Lamberton, for assistance in the proof-reading and suggestions of value;
to Horace M. Rumsey, Esq., of the Philadelphia Bar, for the verification
of all citations of authority; to Horace Castle, Esq., of the Philadelphia and Denver bars, for the Table of Cases and the preparation
of the Index; to Warren G. Griffith, Esq., of the Philadelphia Bar,
for many courtesies, and to Mr. Henry Rainey for invaluable help
with the manuscript.
The portraits have been etched by the well-known artists of
Philadelphia, Max Rosenthal and Albert Rosenthal, who suggested
the idea of illustrating the text, and whose knowledge, judgment,
taste and skill in the execution of portraits of distinguished Americans are familiar to all collectors and historical students.
H.L.C.
ï~~CONTENTS.
CHAPTER I.
PAGB?A03
GENERAL INTRODUCTORY VIw.............................. 1-22
PART I.
SOURCES OF THE JURISDICTION OF THE SUPREME COURT
OF THE UNITED STATES-168o-1774.
CHAPTER II.
INTRODUCTION................................23-38
Special Fitness of the Framers of the Constitution for their Work: Classification of Sources
of Jurisdiction: Admiralty Cases: Colonial Vice-Admiralty Courts: Jurisdiction: Acts of
Trade: Colonial Judges: Extension of Jurisdiction: Revenue Cases: Colonial Opposition:
Remonstrance of First Continental Congress.
CHAPTER III.
EFFORTS TO SECURE REDRESS..........................39-47
Steps toward a Federal Jurisdiction: Washington's Letters: Establishment of State Admiralty
Courts: Appeals to Congress Regulated: Methods of Procedure.
CHAPTER IV.
CONGRESSIONAL COMMITTEES OF APPEAL.................. 48-54
Special Committees: Standing Committee of Appeals: Growth of Federal Power: Case of
Sloop "Active."
CHAPTER V.
ESTABLISHMENT OF THE CoURT OF APPEALS IN CASES OF CAPTURE.... 55-64
Judges: Case of the Brig "Savannah:" Decay of the Court: Analysis of its Work.
viI
ï~~viii
CONTEN TS.
CHAPTER VI.
PAGI
OTHER FEDERAL COURTS..........................65-80
Courts for the Trial of Felonies and Piracies: Courts for the Determination of Controversies
between the States as to Boundary, Territory and Jurisdiction: Controversies between Individuals Claiming Lands under Grants of two or more States: Suit by an Individual against
a State.
CHAPTER VII.
DEFECTS OF THE OLD JUDICIAL SYSTEM................... 81-86
Instances of Judicial Feebleness on the part of Congress.
PART II.
THE ESTABLISHMENT OF THE SUPREME COURT.
CHAPTER VIII.
DEFECTS OF THE ARTICLES OF CONFEDERATION............... 87-106
Want of a Federal Judicature: Views of Hamilton, Madison and others: The Federal Convention: Plans for a National Judiciary: Course of the Debate: Final Form of Plan Adopted.
CHAPTER IX.
OBJECTIONS URGED BY THE STATES........................ o107-127
Answers thereto: Views of the State Judiciaries upon the Power of the Courts to Annul an
Act of the Legislature: Scope and Purpose of Article Third in the Constitution.
CHAPTER X.
THE JUDICIARY ACT OF 1789................................128-137
Debate in Congress: Final Passage of the Act.
PART III.
THE SUPREME COURT OF THE UNITED STATES.
CHAPTER XI.
ORGANIZATION OF THE COURT....................... 138-I67
Judges first appointed: Washington's Letters: Biographical Sketches of Jay, Rutledge, Cushing, Harrison, Wilson, Blair: First Session of the Supreme Court of the United States:
Adoption of Rules: Sketch of Iredell: Circuit Court Duties: Suits by Citizens against a
State: Sketch of Johnson: Hayburn's Case: Assertions of Judicial Independence: State Trials.
ï~~CONTENTS. ix
CHAPTER XII.
PAGE
FIRST EPOCH, 1790-1801.......................... 168-194
Early Decisions upon Constitutional Questions: Admiralty Causes: Matters of Practice:
Changes upon the Bench: Sketches of Paterson, Ellsworth, Chase, Washington, Moore:
Changes in the Chief Justiceship: Instances of Politico-Judicialism: Judicial Pluralists:
Estimate of the Services of the old Supreme Court.
CHAPTER XIII.
SECOND EPOCH, i8oi-I816......................... 195-241
The Supreme Court of the United States under Chief Justice Marshall: The First Half of
Marshall's Judicial Career: Sketch of Marshall's Leading Decisions: Marbury v. Madison:
Repeal of the Judiciary Act of x8ox: The Midnight Judges: Impeachments of Judge Pickering and Justice Chase: Cases considered by the Court: Instances of Federal Supremacy:
Growth of Federal Power: United States v. Judge Peters: Trial of Aaron Burr: Rulings
upon the Law of High Treason: Fletcher v. Peck: Law of Prize and Admiralty Jurisdiction:
Cases of the "Exchange" and the "Nereide:" Land Cases: Sketches of Justices Johnson,
Livingston, Todd, Duvall and Story: The Early Bar of the Supreme Court.
CHAPTER XIV.
THIRD EPOCH, 1816-1835..................................... 242-287
The Latter Half of Marshall's Career: The Golden Age of the Supreme Court: Appellate
Jurisdiction of the Supreme Court under the 25th Section of the Judiciary Act: Martin v.
Hunter's Lessee: Cohens v. State of Virginia: The Term of xs819: McCulloch v. State of
Maryland: Trustees of Dartmouth College v. Woodward: Sturges v. Crowninshield: Osborn
v. Bank of the United States: Power of Congress to Regulate Commerce: Gibbons v. Ogden:
Wilson v. Blackbird Creek Marsh Co.: Brown v. State of Maryland: Constitutional Restrictions upon the Powers of the States: Craig v. State of Missouri: Position and Influence of
the Supreme Court: Rights of the States: Providence Bank v. Billings: Barron v. Mayor of
Baltimore: Powers of States to pass Bankrupt Laws: Ogden v. Saunders: Boyle v. Zacharie:
What Constitutes a State: Cherokee Nation v. State of Georgia: Worcester v. State of Georgia: Last Constitutional Decision of Marshall: Principles of Constitutional Interpretation:
Sketches of Justices Thompson, Trimble, McLean, Baldwin and Wayne: General Review of
the Work accomplished by the Supreme Court under Marshall.
CHAPTER XV.
FOURTH EPOCH, 1835-1850........................ 288-328
The First Half of Taney's Judicial Career: General Character of Questions Discussed: Sketch
of Chief Justice Taney: Sketches of Justices Barbour, Smith, Catron, McKinley and Daniel:
Leading Cases: Change in the Principles of Constitutional Interpretation: State of New York
v Miln: Briscoe v. Bank of the Commonwealth of Kentucky: Charles River Bridge Case:
Limitations upon the Doctrine of the Dartmouth College Case: Lament of Justice Story:
Miscellaneous Cases: Kendall v. United States: Rhode Island v. Massachusetts: Corporation
Cases: Limitations upon the Powers of the States: Florida Land Claims: Martin v Waddell:
Swift v. Tyson: The Establishment of the Doctrine of a General Commercial Jurisprudence:
The Fugitive Slave Law: Prigg v. Commonwealth of Pennsylvania: Cases Relating to Slavery:
Miscellaneous Cases: The Girard Will Case: The Myra Clark Gaines Case: Cases of Inter
ï~~CONTENTS.
PAGE
State Commerce: The License Cases: The Passenger Cases: Admiralty Cases. Waring v.
Clarke: Cases Affecting the Relations of the State to the Union: Luther v. Borden: General
Review of Work Accomplished by the Court at this Time: Sketch of the Bar of the Supreme
Court.
CHAPTER XVI.
FIPTH EPOCH, 1850-1861........................ 329-381
The Latter Half of Taney's Judicial Career: Sketches of Justices Nelson, Woodbury, Grier,
Curtis and Campbell: Miscellaneous Cases: Patents: Copyrights: Land Grants: Controversies
between States as to Boundaries: The Powers of the States: Taxing Power: To Pass Retrospective Laws: To Revoke Ferry Grants: To Punish Offences Punishable by Congress: To
Protect Fishery Rights: Exception to Power to Tax: To Collect Tolls: Liability of Corporations to Taxation: Jurisdiction of Supreme Court: Commercial Law: Contracts by Mail:
Miscellaneous Cases: Extradition: The Wheeling Bridge Case: Cooley v. Board of Wardens
of the Port of Philadelphia: Great Extension of the Admiralty Jurisdiction: The Genesee
Chief: Rise of the Slave Power: The Dred Scott Case: Ableminan v. Booth: Taylor v. Carryl:
Suits against a State: Habeas Corpus Cases: General Review of Work accomplished by the
Court Prior to the Outbreak of the Civil War.
CHAPTER XVII.
SIXTH EPOCH, 1861-1870........................ 382-439
Outbreak of the Civil War: Character of Cases before the Court: California Land Claims:
Mexican, Spanish and French Titles: The Prize Cases: Rights and Liabilities of Neutrals
and Belligerents: A National Crisis: Value of the Principles established by Marshall as
shown in the Tax Cases: Death of Taney: Appointment of Salmon P. Chase as his Successor:
Sketches of Chief Justice Chase and of Associate Justices Clifford, Swayne, Miller, Davis and
Field: Cases Growing out of a Condition of War: The Jurisdiction of Military Commissions:
Questions of Prize: Blockade: Mrs. Alexander's Cotton: The Atlanta: Efforts to Restrain the
Enforcement of the Reconstruction Acts: Ex Parte Milligan: Texas v. White: Cases Growing
out of the Rebellion: The Confiscation Act: Captured and Abandoned Property Act: Effect
of Presidential Pardon: Rights of Officers and Soldiers of the Army of the United States:
California Land Titles: The Obligation of Contracts: The Right of the Federal Judiciary to
Disregard State Decisions on Questions of Commercial Law: Patents: Police Powers of the
States: The Commerce Clause: Crandall v. State of Nevada: State Freight Tax: Gilman v.
City of Philadelphia: Miscellaneous Cases.
CHAPTER XVIII.
SEVENTH EPOCH, 187o-189o......................... 440-470
The Climax of Federalism: Financial Legislation of Congress: The Early Legal Tender
Cases: Bronson v. Rodes: Butler v. Horwitz: Hepburn v. Griswold: The Unconstitutionality
of Paper Money Declared: Changes in the Composition of the Court: The Later Legal Tender
Cases: Knox v. Lee: Parker v. Davis: Doctrine of Hepburn v. Griswold Reversed: The Constitutionality of Paper Money Established, The Thirteenth, Fourteenth and Fifteenth Amend
ments: Unexpected Narrowness of Construction: The Slaughter House Cases: Sketches of
Justices Strong, Bradley and Hunt.
ï~~CONTENTS.
xl
CHAPTER XIX.
PAG
SEVENTH EPOCH CONTINUED, 1874-1888.................. 471-533
Death of Chief Justice Chase: Appointment of Morrison R. Waite as his Successor: General
Character of Cases Considered at this Time: Sketches of Chief Justice Waite and Associate
Justices Harlan, Woods and Matthews: Leading Cases in Construction of the Thirteenth,
Fourteenth and Fifteenth Amendments: The Right of Suffrage: The Enforcement Act:
Right of Colored Men to Serve as Jurors: Cases Relating to Elections: Due Process of Law:
Civil Rights Cases: Mormon Polygamy and Bigamy a Punishable Crime: The Removal
Cases: Tennessee v. Davis: Juillard v. Greenman: The Zenith of Federalism: Power of Congress to Reissue Paper as a Legal Tender in Time of Peace: Kilbourn v. Thompson: Right
of the House of Representatives to Punish for Contempt: Civil Service: The Eleventh Amendment: Louisiana v. Jumel: Virginia Coupon Cases: Indian Tribes the Wards of the Nation:
Exclusion of the Chinese: The Kansas Liquor Law: The Chicago Anarchists: Inter-State
Commerce: The Telegraph an Instrument of Commerce: Police Regulations: The Granger
Cases: Miscellaneous Cases: Louisiana Lottery: Telephone Cases: Sketches of Associate
Justices Gray, Blatchford and Lamar.
CHAPTER XX.
THE COURT COMPLETES THE WORK OF THE FIRST CENTURY OF ITS ExISTENCE,
1888-1x890o................................534-558
Death of Chief Justice Waite: Appointment of Melville W. Fuller as his Successor: Sketches
of Chief Justice Fuller and of Associate Justices Brewer and Brown: General Character of
Cases Considered: Inter-State Commerce: Leisy v. Hardin, the Original Package Case: Police
Regulations as to Liquor Laws: Independence of Executive Officers: Right of Debtor to Insure his Life: Power of Courts to Punish Contempta: Ex Parte Terry: In re Neagle: Peace
of the United States: Indian Tribes: Constitutional Control of Railroads: Mormon Church
Case: Suits against a State: Ex Post Facto Laws: Cruel and Unusual Punishments: Modification of Granger Cases: Telephone Cases: The Bar of the Supreme Court: Conclusion.
CHAPTER XXI.
SKETCHES OF THE REPORTERS OF THE DECISIONS OF THE SUPREME COURT OF
THE UNITED STATES, AND OF THE CLERKS OF THE COURT..-. *-*-*-559-577
Reporters.-Alexander James Dallas: William Cranch: Henry Wheaton: Richard Peters:
Benjamin Chew Howard: Jeremiah S. Black: John William Wallace: William Todd
Otto: John C. Bancroft Davis.
Clerks.-John Tucker: Samuel Bayard: Elias B. Caldwell: William Griffith: William T. Carroll: Daniel Wesley Middleton: James Hall McKenney.
ï~~THE PROCEEDINGS IN CELEBRATION
OF THE
ONE HUNDREDTH ANNIVERSARY OF THE ORGANIZATION
OF THE SUPREME COURT OF THE UNITED STATES.
SKETCH OFI THE PREPARATIONS POR THE CELEBRATION.....
SUGGESTIONS MADE BY THE PRESIDENT OF THE UNITED STATES.
ACTION OF THE NEW YORK STATE BAR ASSOCIATION......
ADDRESS OF HON. WILLIAM H. ARNOUX.............
President of the Association.
PAGE...... 581....... 582....... 583....... 583
ARRANGEMENTS FOR THE CELEBRATION.............................585
ACTION OF THE NEW YORK BAR ASSOCIATION................ 586
PROGRAMME DETERMINED ON......................... 586
THE FOURTH OF FEBRUARY, 1890..................... 587
ADDRESS OF EX-PRESIDENT CLEVELAND UPON TAKING THE CHAIR...... 590
ADDRESS OF WELCOME OF HON. WILLIAM H. ARNOUX..
ADDRESS OF WILLIAM ALLEN BUTLER, ESQ........
"The Origin of the Supreme Court of the United States and its Place
ADDRESS OF HON. HENRY HITCHCOCK..........
"The Supreme Court and the Constitution."
ADDRESS OF HON. THOMAS J. SEMMES..........
"The Personal Characteristics of the Chief Justices."
ADDRESS OF HON. EDWARD J. PHELPS..........
"The Supreme Court and the Sovereignty of the People."
REMARKS OF CHIEF JUSTICE FULLER...............
ADDRESS OF MR. JUSTICE FIELD....................
"The Centenary of the Supreme Court."
ADDRESS OF MR. JUSTICE HARLAN...................... 593.......... 596
in the Constitution.".... 620......... 658.......... 686.......... 696........ 698.......... 719
APPENDIX.................................. 727-729
List of Committees in charge of Judiciary Centennial.
TABLE OF CASES.............................730o-738
INDEX...........................
xii
739-745
ï~~ILLUSTRATIONS.
Facing page
JOHN JAY......................... Frontispiece
From the original painting by Gilbert Stuart in the possession of the family.
JOHN RUTLEDGE.................................. 143
From the painting by Trumbull, in the Trumbull Collection, Yale School of Art.
WILLIAM CUSHING........................ 144
From the Pastel by Sharpless, Philadelphia, 1799, in the possession of the family.
ROBERT H. HARRISON.............................. 145
From the painting, "Battle of Trenton," by Trumbull, Yale School of Art.
JAMES WILSON.......................... 147
From the miniature in the possession of the family.
JOHN BLAIR........................... 150
From the miniature in the possession of the family.
JAMES IREDELL........................ 154
From the painting in the possession of Iredell Meares, Esq., Wilmington, N. C.
THOMAS JOHNSON....................... 161
From the painting by Guillaume, after R. Peale, in the possession of Bradley T. Johnson, Esq.,
Baltimore, Md.
WILLIAM PATERSON.................................. 183
From the painting in the possession of the family.
OLIVER ELLSWORTH................................ I85
From the Pastel by Sharpless in the possession of Mr. Justice Gray.
SAMUEL CHASE.......................... 187
From the painting by C. W. Peale, Independence Hall, Philadelphia.
BUSHROD WASHINGTON.............................. 188
From the painting by Harding in the possession of the family.
ALFRED MOORE......................... 190
From the miniature in the possession of Alfred Moore Waddell, Esq., Wilmington, N. C.
xiii
ï~~xiv ILL US TRA TIONS.
Facing page
JOHN MARSHALL1 **................................ 195
From the painting by Jarvis in the possession of Mr. Justice Gray.
WILLIAM JOHNSON......................... 227
From the painting by Jarvis in the possession of the New York Historical Society.
BROCKHOLST LIVINGSTON.................... 230
From the painting in the possession of the family.
THOMAS TODD............................... 232
From the painting in the possession of the family.
GABRIEL DUVALL........................ 233
From the painting in the Capitol, Washington, D. C.
JOSEPH STORY.......................... 235
From the drawing by W. W. Story in the possession of the family.
SMITH THOMPSON......................... 273
From the painting by Dumont in the possession of Smith Thompson, Esq., Hudson, N. Y.
ROBERT TRIMBLE........................ 274
From the painting in the possession of the family.
JOHN MCLEAN........................... 276
From the pair ing by Ives in the possession of Mr. Justice Brown.
HENRY BALDWIN......................... 279
From the painting by Lambdin in the possession of the family.
JAMES M. WAYNE........................ 282
From a photograph by Brady in the possession of Mr. Justice Field.
ROGER B. TANEY....................... 291
From the painting by Healy in the Capitol, Washington, D. C.
PHILIP P. BARBOUR....................... 296
From the painting in the possession of the family.
JOHN CATRON........................... 299
From the painting in the possession of the Tennessee Historical Society, Nashville, Tenn.
JOHN McKINLEY......................... 300
From the painting in the possession of Mrs. Mary McKinley Filley, St. Louis, Mo.
PETER V. DANIEL....................... 302
From the original painting in the possession of the family.
ï~~ILLUSTR A TIONS. xv
Facing page
SAMUEL NELSON........................... 340
From the photograph in the possession of Hon. Win. H. Amrnoux, New York City.
LEVI WOODBURY....................... 341
From the original painting in the possession of the family.
ROBERT C. GRIER................................... 343
From a photograph by Rice, Washington, D. C.
BENJAMIN R. CURTIS....................... 345
From a photograph by Black, Boston, Mass.
JOHN A. CAMPBELL.............................. 350
From a photograph by Brady.
SALMON P. CHASE...................................389
From a photograph by Rice, Washington, D. C.
NATHAN CLIFFORD................................. 395
From a photograph by Lamson, Portland, Me.
NOAH H. SWAYNE......................... 398
From a photograph by Rice, Washington, D. C.
SAMUEL F. MILLER........................ 401
From a photograph by Bell, Washington, D. C.
DAVID DAVIS........................... 403
From a photograph by Bell, Washington, D. C.
STEPHEN J. FIELD.................................. 406
From a photograph by Faber, San Francisco.
WILLIAM STRONG........................ 461
From a photograph by Faber, San Francisco.
JOSEPH P. BRADLEY............................. 464
From a photograph by Bell, Washington, D. C.
W ARD HUNT.......................... 468
From a photograph by Fassett, Washington, D C.
MORRISON R. WAITE...................... 472
From a photograph by Rice, Washington, D. C.
JOHN M. HARLAN........................ 477
From a photograph by Rice, Washington, D. C.
ï~~xvi ILL USTRA TIONS.
Facing page
WILLIAM B. WOODS..............................480
From a photograph by Bell, Washington, D. C.
STrANLEY MArTHEWS.........................482
From a photograph by Bell, Washington, D. C.
HORACE (GRAY..................................525
From a photograph by Rice, Washington, D. C.
SAMUEL BLATCHPORD...............................528
From a photograph by Bell, Washington, D. C.
Lucius Q. C. LAMAR.........................530
From a photograph by Bell, Washington, D. C.
MELVILLE W. FULLER........................534
From a photograph by Bell, Washington, D. C.
DAVID J. BREWER............................538
From a photograph by Bell, Washington, D. C.
HENRY B. B1kOWN.........................541
From a photograph by Bell, Washington, D. C.
ï~~A HISTORY
OF TIE
SUPREME COURT OF THE UNITED STATES.
CHAPTER I.
GENERAL INTRODUCTORY VIEW.
A HISTORY of the Supreme Court of the United States,
although chiefly of interest to the legal profession, cannot fail to contain much matter that will prove attractive to the general reader. It will involve not only an account
of the establishment and organization of the tribunal itself, the
development of its authority, and the manner in which its great
powers have been exercised, but also an exploration of the
sources of its jurisdiction to the earliest period of our national
life. The former can be drawn from the inexhaustible mines
of wealth to be found in the public records; the latter can be
traced to the judicial powers exercised by the Continental Congress through the agency of Committees, and finally through
the first Federal Court of Appeals, established January 15th,
178o, known as The Court of Appeals in Cases of Capture.'
1 The records referred to consist of the Debates in the Federal and State Conventions which preceded and followed the Framing of the Constitution of the United
States, generally known as Elliott's Debates on the Federal Constitution (4 vols.) and
1
ï~~2 THE SUPREME COURT OF THE UNITED STATES.
Such a history will involve also a consideration of many of
the phases of our social and political existence. Just as the
student of English Constitutional History finds in the trials
of Raleigh, Strafford, Sydney, Russell, the Seven Bishops and
other martyrs and patriots the most striking examples of civil
and religious policy, so the student of our history will discover in the State Trials of the United States and in decisions
upon fundamental Constitutional questions the most faithful
pictures and the most authentic memorials of the temper, the
manners, the politics and the sentiments of the age. In the
almost-forgotten case.of the Sloop Active we can trace the
successive features of a notable struggle for federal supremacy,
through a period of thirty years, marked by the most dramatic incidents, exhibiting in its inception the political imbecility of the Continental Congress when brought into conflict
with the power of a State, and in its final issue the complete
and triumphant vindication of National authority. In the
prosecutions brought under the Alien and Sedition Laws, in
the trial of Henfield for illegally enlisting in a French privateer; or of Callender, indicted for a libel upon President
Adams; in the trials of the Western Insurgents for insurrection against the excise laws; in the case of Robbins, on a
claim for delivery to the British Government on a charge of
murder; of Aaron Burr for high treason; of Mr. Justice
Supplement, containing the Madison Papers; Pennsylvania and the Federal Constitution; Maclay's Debates in the First Senate of the United States; Benton's Abridgment of Debates of Congress; Revised Statutes of the United States; Statutes at
Large; Records of the Supreme Court of the United States; Reports of the Decisions of the Supreme Court of the United States; Journals of the Continental Congress; Articles of Confederation; Secret, Journals of Congress; MS. Papers of the
Continental Congress in the Library of the State Department; MSS. in the Office of
the Clerk of the Supreme Court of the United States; Colonial Records and early
State papers.
ï~~PROMINENT FEA TURES.
Chase, impeached for misconduct as a Judge; in the famous
case of Marbury v. Madison; in the Dartmouth College case;
in Gibbons v. Ogden; in the Dred Scott decision, in the
Slaughter House cases, and in the Legal Tender cases, we
find abundant material from which important facts of history
can be drawn. These cases lie at the foundation of our jurisprudence and are destined to guide and control the most distant posterity.
Such a work will mingle the features of biography with
a narrative of momentous events, portraying the character of
famous judges and advocates, displaying the talents and
learning of the sages of the law, while describing the scenes
in which they were conspicuous actors. It will exhibit the
birth, growth and decay of customs, the abolition of ancient
institutions and the extension of maxims of free government
to all the affairs of citizenship. It will delineate, on the one
hand, the attitude of States in moments of defiance to National authority, or in the hour of their final resignation and
defeat; and, on the other, will describe the limits of their
independent and uncontrollable sovereignty. It will illustrate
the conduct of individuals under an infinite variety of circumstances, while depicting the common phases of litigation.
In fact, the Court stands in such close relationship to
the political and private rights of individuals in defending
them from assault, and plays such an important part in defining our national obligations, and in determining the lawful
bounds of State and Oongressional authority under the Constitution of the United States, that no careful student of our
institutions, who desires to comprehend the exact nature of
his status as a citizen of our Federal Republic, will rest content with an examination of the debates in Congress or the
administrative acts of the Presidents. For fullness and com
ï~~4 THE SUPREME COURT OF THE UNITED STATES.
pleteness of knowledge, for breadth of view and accuracy of
information, for the true construction and interpretation of
our Great Charter, he must turn to the decisions of the Judiciary which illuminate with steady and effulgent rays the
history of the nation. The law embodies the story of a nation's development, and this truth has been recently dwelt
upon by an eminent teacher of legal science, who declares:
"The student of law in our times has come to recognize the
fact that law is, in a sense, a branch of history, and is to be
studied in a historic spirit and by a historic method; and as
the student of law now recognizes the relation which exists
between law and history, so also has the student of history
come to recognize that a certain relation subsists between
history and law." 1
If we divide our Constitutional history into periods
marked by the War of the Revolution, the years of chaos
and dismay that preceded the Framing of the Constitution,
the Organization of the Government, the early Presidential
administrations, the War of 1812, the term of Marshall's judicial service, the ascendency of State Rights, the agitation
upon slavery, the Civil War, and the days succeeding those
of Reconstruction, we will find subjects furnished for judicial
action as full of characteristic variety as the periods themselves. We may expect, therefore, to discover in the decisions of the Federal Court of last resort not only the result,
but an account of the many processes of our national development. We may gaze upon a panoramic view of our Constitutional jurisprudence, unfolding itself in executive acts
1 Professor Henry Wade Rogers in his "Introduction to a Course of Lectures
before the Political Science Association of the University of Michigan, upon The
Constitutional History of the United States as seen in the Development of American
Law."
ï~~PROMINENT FEATURES.
and legislative policies, affecting both our foreign and domestic relations, revealing the extended domain of the law, and
displaying, as on a chart, as did the Pillars of Hercules in
ancient times, the ultimate limits of national jurisdiction.
Within these are the coast lines and harbors and rich possessions of individual right.
Much material will be found full of fascination for the
student of mankind. The contentions and conduct of men,
whether springing from avarice or enterprise, whether stained
with blood or stamped with the features of commercial competition, present a picture of society full of life and color,
varying with the habits of thought and action of the age in
which they occur, and dramatic in their grouping and character. The mighty contests of the forum deal with principles of universal application and facts of thrilling interest;
they elicit the most astonishing displays of eloquence, logic
and learning, and are followed by decisions of profound significance pronounced by jurists of incorruptible integrity, and
of abilities which have commanded the respect of the world.
They exhibit theatres of human action which, like many
famous fields of battle, are memorable for the triumph of
truth over error, for hard-won victories of justice over wrong.
Amid the din of conflict between personal interests, and above
the deep-mouthed thunder of the combat between contending
sovereignties, the calm tones of our great tribunal have been
distinctly heard, commanding States as well as citizens to submit without the spilling of blood to a legal settlement of differences. In this respect the Court is the Conservator of the
Peace of the Nation, and her voice is the Harmony of the
Union.
The manner, too, in which the Court is constituted is
worthy of the closest attention. It was one of the sagacious
ï~~6 THE SUPREME COURT OF THE UNITED STATES
utterances of Edmund Burke that, "Whatever is supreme in
a State ought to have, as much as possible, its judicial authority so constituted, as not only to depend upon it, but in
some sort to balance it. It ought to give security to its justice against its power. It ought to make its jurisdiction as
it were something exterior to the State." It may be safely
asserted that this has been accomplished, in a great measure,
in the judicial system of the United States. The dream of
the philosopher has been realized. A separation almost complete has been effected between the judicial and the legislative and executive departments of our government. The
wisdom of such a separation, first definitely expressed by
Montesquieu, has been finally vindicated. In the making of
laws the Judiciary has no share, nor has it any part in executive power. The happy manner iri which the Framers of
our Federal Constitution secured the independence of the
Judiciary,-by the mode of appointment of the Judges, by
making their tenure of office dependent upon good behavior,
by the provision that the compensation of the Judges shall
not be increased or diminished during their continuance in
office, thus emancipating them from the control of the Legislature, and from the temptation of making their decrees a
matter of barter,-has excited the admiration of all philosophical students of our institutions.
The establishment of the Supreme Court of the United
States was the crowning marvel of the wonders wrought
by the statesmanship of America. In truth the creation of
the Supreme Court with its appellate powers was the greatest
conception of the Constitution. It embodied the loftiest ideas
' Francis Lieber, "Civil Liberty and Self-Government," Woolsey's Edition, p. 203.
Story's "Commentaries on the Constitution," Vol. III,, 1571 et seq.
ï~~FUNCTIONS OF THE COURT.
of moral and legal power, and although its prototype existed
in the Superior Courts established in the various States, yet
the majestic proportions to which the structure was carried
became sublime. No product of government, either here or
elsewhere, has ever approached it in grandeur. Within its
appropriate sphere it is absolute in authority. From its mandates there is no appeal. Its decree is law. In dignity and
moral influence it outranks all other judicial tribunals of the
world. No court of either ancient or modern times was ever
invested with such high prerogatives. Its jurisdiction extends
over Sovereign States as well as over the humblest individual.
It is armed with the right as well as the power to annul in
effect the statutes of a State whenever they are directed against
the civil rights, the contracts, the currency or the intercourse
of the people. It restricts Congressional action to Constitutional bounds. Secure in the tenure of its Judges from the
influences of politics, and the violence of prejudice and passion,
it presents an example of judicial independence unattainable
in any of the States and far beyond that of the highest
Court in England.' Yet its powers are limited and strictly
defined. Its decrees are not arbitrary, tyrannical or capricious, but are governed by the most scrupulous regard for
the sanctity of law. It cannot encroach upon the reserved
1 This is admitted by Professor Bryce, who, in writing of the Supreme Court,
says: "The justices are nominated by the President and confirmed by the Senate.
They hold office during good behavior, i. e., they are removed only by impeachment. They have thus a tenure even more secure than that of English Judges, for
the latter may be removed by the Crown on an address from both Houses of Parliament. Moreover, the English Statutes secure the permanence only of the Judges of
the Supreme Court of Judicature, not also of Judges of County or other local
Courts, while the provisions of the American Constitution are held to apply to the
inferior as well as the superior Federal judges." (James Bryce, "The American
Commonwealth," Vol. I, p. 226.)
ï~~8 THE SUPREME COURT OF THE UNITED STATES.
rights of the States or abridge the sacred privileges of local
self-government. Its power is never exercised for the purpose
of giving effect to the will of the judge, but always for the
purpose of giving effect to the will of the legislature, or, in
other words, to the will of the lawJ. Its administration is a
practical expression of the workings of our system of liberty
according to law. Its Judges are the sworn ministers of the
Constitution, and are the High Priests of Justice. Acknowledging no superior, and responsible to their consciences alone,
they owe allegiance to the Constitution and to their own
exalted sense of duty. Instructed and upheld by a highly
educated bar, their judgments are the ripest fruits of judicial
wisdom. Amenable to public opinion, they can be reached,
in case of necessity, by impeachment by the Senate of the
United States. No institution of purely human contrivance
presents so many features calculated to inspire both veneration and awe.
The peculiar nature of the jurisdiction of the Court requires the Judges to be statesmen as well as jurists, and in
most instances, tested by the results, wisely and well have
they acted. Their decisions are not confined to mere questions of commercial law or narrow municipal regulations, but
may involve the discussion and settlement of principles which
affect the policy and welfare of the nation. The Court cannot consider abstract problems, however important, nor can
it frame a fictitious issue for argument to satisfy a speculative interest in the result. It cannot anticipate by an hour
the solution of a practical difficulty. It deals with the present and the past; it cannot put the remedy in force before
the right accrues; but given a question, fairly presented by
1 C. J. Marshall, in Osborn v. Bank of the U. S., 9 Wheaton, 866 (1824).
ï~~ILLUSTRATIONS OF JURISDICTION.
the pleadings in a cause, then, however humble the parties
to the suit, or however trifling the amount involved, the
decision may sweep beyond the petty bounds of local' customs
Sor sectional statutes into the broad domain of international
law, or rise into the loftiest regions of Constitutional jurisprudence. The Court has always upheld the National character of our Government and vindicated the National honor.
At the same time it has carefully guarded the reserved rights
of the States. The most comprehensive and statesmanlike
views have happily prevailed.
A few illustrations will confirm this statement. A British
creditor sued a citizen of the United States upon a debt
sequestered by the State of Virginia during the Revolutionary War, and the argument taxed to the utmost the powers
of the ablest advocates, while the decision expanded from a
statement of the contractual liability of an individual to an
assertion that the treaty obligations of the nation were paramount to the laws of individual States.' A citizen of South
Carolina sued the State of Georgia, and although the storm
of indignation that followed the decision upholding the
suit led to an amendment of the Constitution of the United
States, yet it was fortunate for the legal and moral influence
of the Court that the Judges refused to bend before the popular fury.2 A justice of the peace of the District of Columbia
applied for a mandamus addressed to the Secretary of State,
to enforce his right to a commission, and the decision sustained and vindicated the power of the Court to declare void
an Act of Congress, as being repugnant to the Constitution,
subjecting, once and forever, all executive and ministerial
officers as well as Congress itself to the control of the Court
' Ware v. Hylton, 3 Dallas, 199 (1796). 2 Chisholm Exr. v. Georgia, 2 Dallas,
419 (1793).
ï~~10 THE SUPREME COURT OF THE UNITED STATES.
in expounding the fundamental law.' An individual holding
lands under a patent granted by a State brought suit against
a trespasser, upon the covenants in his deed, and a statute of
the State which had been passed in violation of his private
rights was hewn to the ground.2 An humble institution of
learning resisted the attempt of a Legislature to amend its
charter without its consent, and the decision placed all charters
within the protection of the Constitutional clause which forbids
States to impair the obligation of contracts.3 A local branch
of the Bank of the United States objected to State taxation,
and the power of a State to destroy an agency of the general
Government was denied in an argument which has proved to
be a veritable bulwark of national authority.4 The State of
New York claimed the exclusive right to the navigation of
the Hudson, and sought to confine it to her licensees, as a
reward for the invention of propelling boats by steam. The
decision destroyed the monopoly and emancipated the commerce of the nation from sectional control.5 A State arrogated to itself the right to prohibit the transportation of merchandise from other States except on payment of toll or
tribute, and the decision declared that inter-state commerce
should be free.6 Again a State endeavored to enforce a like
prohibition with reference to the passage of citizens of the
United States, from one part of the country to the other,
through that State, and the decision upheld the personal right
of unchallenged locomotion.' On numerous occasions the
1 Marbury v. Madison, I Cranch, 158 (1803).
2 Fletcher v. Peck, 6 Cranch, 87 (18io).
a Dartmouth College Case, 4 Wheaton, 518 (1819).
SMcCulloch v. State of Maryland, 4 Wheaton, 316 (1819).
5 Gibbons v. Ogden, 9 Wheaton, I (1824).
6 Almy v. The State of California 24 Howard, 169 (i86o). Welton v. State of
Missouri, 91 U. S. 275. (1875).
7 Crandall v. State of Nevada, 6 WVallace, 35 (1867).
ï~~ILL USTRA TIONS.
11
States have endeavored to compel the payment of a tax
before a citizen of another State should be at liberty to buy
or sell within their borders. In every instance the decision
has sustained the national character of our Union. Had the
decisions been the reverse of what they were, and affirmed
the pretensions of the States, which had been uniformly sustained by their own highest tribunals, the character and condition of our country would have been transformed into a
scene of conflict between vexatious restrictions upon interstate commerce, and the States themselves would have been
converted into prison cells, from which none could escape
except upon payment of gate-money to the gaoler. A quarrel as to tolls arose between two bridge companies in Massachusetts, and the decision rescued the States from every effort
to suppress those progressive improvements by which the
earth has been subdued to the dominion of man, while at the
same time proper and necessary restrictions were imposed
upon the claims of exclusive right set up under color of
legislative grant.' A negro in Missouri brought an action to
assert the title of himself and family to freedom, and the
decision led to the emancipation of a race.2 A federal army
officer refused to recognize a writ of Habeas Corpus issued
from the Supreme Court, and the sword was snatched from
the breast of the citizen by the hand of the civil power. The
principle was established that where the Courts are open, and
in the proper exercise of their jurisdiction, the right of a citizen to a trial by jury cannot be denied or abridged-a
decision of such importance as to be clothed "with the heritage of immortality."'3 A debtor attempted to discharge himCharles River Bridge v. Warren Bridge, Ith Peters, 42o (1837).
2 Dred Scott v. Sanford, 19 Howard, 393 (1857).
3 Ex parte Milligan, 4 Wallace, 2 (i866).
ï~~12 THE SUPREME COURT OF THE UNITED STATES.
self by the tender of government paper, and the war powers
and the general sovereignty of the National government, and
of its right to maintain itself, were stated and sustained.' A
grant of a State was assailed on the plea of monopoly, and
the decision saved the sovereignty of the State from annihilation, and put a just interpretation upon Federal power.2
These are but a few of the many instances of faithful service by the Court to the interests of the Nation, and although
some of them were subjected at the time to fierce criticism,
and may be still questioned by many, yet, viewed as a whole,
they cannot fail to enlarge our sense of obligation to the
Court. Few laymen appreciate, and many lawyers forget, the
extent of their debt; but those who have studied the matter
most profoundly are the most outspoken in their expressions
of gratitude and praise. Besides these, which were public in
character and far-reaching in their effect, arising under the
Constitution, the laws of the United States or treaties made
under their authority, or out of controversies to which the
United States was a party, or out of controversies between
States, or between a State and the citizens of another State,the Court has performed a vast amount of silent and unseen
work in the broad and fruitful field of commercial law,
enlarging the bounds of the science of jurisprudence, and
refining and strengthening the professional apprehension of
the rights, duties and obligations of men in our complex
state of society.. Cases affecting Ambassadors or other public
ministers and consuls; cases involving the rights, duties and
liabilities of shipowners, shipmasters, mariners and material
1 Hepburn v. Griswold, 8 Wallace, 603 (1870); Legal Tender Cases, 12 Wallace,
457 (1871; Juillard v. Greeninan, Io U. S. 421 (1883).
2 Slaughter House Cases, 16 Wallace, 36 (1873).
ï~~CHARACTER OF CASES.
18
men; questions of prize, the conflicting rights of captors and
claimants, of neutrals and belligerents, trading under licenses,
or privateering under letters of marque and reprisal; cases of
admiralty and maritime jurisdiction; controversies between
citizens or corporations of different States; questions of negotiable paper, insurance, partnership and personal relations in
endless variety, have tested the energies of the Court. The
business of the Supreme Court springs from that of a continent. It arises out of many systems of laws differing from
each other in important particulars. It includes the most
diverse cases tried in the lower courts in many different
modes of procedure; some under the practice of the Common
Law; some under the Chancery of England; some borrowed
from French or Spanish law; some under special laws framed
for the execution of Treaties entered into by the United
States; and many more so anomalous as to be incapable of
accurate classification. Yet the stability and uniformity of
the course of decision are remarkable, and are due in a great
measure to the length of time that the Judges have held
office under the tenure of good behavior, but chiefly, as has
been remarked by one of their number, because it is one of
the favors which the providence of God has bestowed on our
happy country, that for the period of sixty-three years, from
the days of John Adams as President to those of Abraham
Lincoln, the great office of Chief Justice was filled by only
two persons, each of whom retained to extreme old age his
great and useful qualities and powers.
It will not be inappropriate to quote a few of the opinions of our most distinguished statesmen and jurists as to
1 Remarks of B. R. Curtis upon the death of Chief Justice Taney, at a meeting
of the Boston Bar, held Oct. 15, 1864.
ï~~14 THE SUPREME COURT OF THE UNITED STATES.
the place occupied by the Court in our national economy,
and to these may be added the views of accomplished foreign
writers who have made our institutions the subject of close
study. Washington, with sagacious insight into the true
character of our government, then just established, declared, "Considering the judicial system as the chief pillar
upon which our national government must rest, I have
thought it my duty to nominate for the high offices in that
department, such men as I conceived would give dignity and
lustre to our national character." 1 Henry Clay pronounced
the Supreme Court to be one of the few great conservative
elements of the government. Pinkney called it "a more than
Amphictyonic Council;" Webster spoke of it "as the great
practical expounder of the powers of the government," and
with awful solemnity declared, "No conviction is deeper in
my mind than that the maintenance of the Judicial power is
essential and indispensable to the very being of this government. The Constitution, without it, would be no Constitution
-the Government, no Government. I am deeply sensible,
too, and, as I think, every man must be whose eyes have
been open to what has passed around him for the last
twenty years, that the Judicial power is the protecting power
of the government. Its position is upon the outer wall.
From the very nature of things, and the frame of the Constitution, it forms the point at which our different systems of
government meet in collision, when collision unhappily exists.
By the absolute necessity of the case the members of the
Supreme Court become Judges of the extent of Constitutional
' Letter of Washington to James Wilson, enclosing his Commission as an Associate Justice of the Supreme Court of the United States, dated Sept. 30, 1789.
Original in possession of Miss Hollingsworth, of Philadelphia.
ï~~OPINIONS OF JURISTS.
15
powers. They are, if I may so call them, the great arbitrators between contending sovereignties." 1 Horace Binney
declared that "It is the august representative of the wisdom
and justice and conscience of the whole people. It is the
peaceful and venerable arbitrator between the citizens in all
questions touching the extent and sway of Constitutional
power. It is the great moral substitute for force in controversies between the people, the States and the Union." Sir
Henry Maine speaks of it as a "unique creation of the
founders of the Constitution." Bryce, paraphrasing an expression of the Civil law, calls it "the living voice of the
Constitution;" De Tocqueville says that "a more imposing
judicial power was never constituted by any people;" Lord
Brougham does not hesitate to pronounce that "the power of
the Judiciary to prevent either the State Legislatures or Congress from overstepping the limits of the Constitution, is the
very greatest refinement in social policy to which any state
of circumstances has ever given rise, or to which any age
has ever given birth;" while Von Holst, in his elaborate
"Constitutional History," treats the decisions of the Court
with the profoundest respect.
The title of the Court to public veneration and esteem
does not rest alone on the peculiar character of its jurisdiction, or its powers, or the wisdom with which they have been
exercised, but largely upon the reputation of its Judges for
purity and ability. The earliest members of the Court were
those who had been conspicuous actors in the great drama of
the Revolution, and who had played no unimportant part in
the work of framing the Constitution. The first Chief Jus1 Speech of Daniel Webster in the House of Representatives of the United States,
Jan. 25, 1826.
ï~~16 THE SUPREME COURT OF THE UNITED STATES.
tice, though not a profoundly learned lawyer, was a man
whose character was "a brilliant jewel in the sacred treasures
of national reputation," and "when the spotless ermine of the
judicial robe fell on John Jay, it touched nothing not as
spotless as itself." Beside him sat William Cushing, for
many years the learned Chief of the Judiciary of Massachusetts; James Wilson, of Pennsylvania, whose transcendent
merits as one of the most sagacious and eloquent logicians of
the age, and one of the profoundest of our early statesmen,
are looming into larger and still larger proportions as years
go by; John Blair, of Virginia, with Wilson, a distinguished
member of the Federal Convention, and a Judge of much
experience in the Courts of his State. A few years later
came John Rutledge, the most renowned of the sons of South
Carolina, this time summoned to preside over the Court, after
having declined to act as an Associate Justice, whose brilliant
faculties sustained a sudden and sad eclipse, in part the cause
and in part the effect of his rejection by the Senate; James
Iredell, of North Carolina, the study of whose works cannot
fail to awaken admiration of his qualities as a judge and his
virtues as a man, and Thomas Johnson, of Maryland, formerly a member of the Continental Congress, and a lawyer
of admitted power. Still later appeared Oliver Ellsworth, of
Connecticut, a giant in the law, and the acknowledged author
of our judiciary system; William Paterson, of New Jersey,
the author and able advocate of the State Rights Plan in the
Federal Convention, and Samuel Chase, of Maryland, a Signer
of the Declaration of Independence, rough, impetuous and
overbearing in manner as a judge, though fearless and
honest, subsequently impeached for misconduct, but honorably acquitted. A younger generation succeeded, and the
Court rose steadily, with John Marshall as Chief Justice, and
ï~~JUSTICES OF THE COURT.
17
Bushrod Washington, Alfred Moore, William Johnson, Brockholst Livingston, Thomas Todd, Joseph Story and Gabriel
Duvall as Associate Justices, until it touched the highest
pinnacle of glory and power. This was the Golden Age
of the Supreme Court. Of Marshall, the mighty Chief, of
peerless reputation, by whose hand the Constitution was
moulded into its final and permanent form, it would be impossible to write in terms of praise that would be deemed
extravagant. Statesmen of all parties and jurists of all nations unite in pronouncing him to have been the greatest
judge that America has produced, a man whose character is
the "most exquisite picture in all the receding light of the
early days of the republic." Washington was to Marshall
what Sir Francis Buller was to Lord Mansfield, while Story,
by his education, scholarship and extraordinary gifts as a
writer, has won imperishable fame both at home and abroad.
The remaining judges, with the exception of Moore, whom ill
health forced to an early retirement, sat by the side of Marshall for many years, contributing to the growing strength
of the Court and sharing ii its renown. Not less useful,
though far less known, were the labors of Smith Thompson,
of New Ycrk, the associate of Kent, Robert Trimble, of Kentucky-too early snatched away, but leaving a judicial reputation earned by but few after so short a period of service,John McLean, of Ohio, and Henry Baldwin, of Pennsylvania,
whose vigorous minds and ample learning gave solidity to
the structure which their predecessors had reared. The Court
then entered on a new career; its former Constitutional doctrines were modified, and the influences to which it was
subjected were shaken by the stormy passions that agitated
the political sea. Although Chief Justice Taney has suffered
much in reputation from the consequences of the Dred Scott
ï~~18 THE SUPREME COURT OF THE UNITED STATES.
decision, yet few men, who will take the pains to study temperately the work of his long and conspicuously able judicial
career will be unwilling to admit that his mind was of the
highest order, that he steadily and firmly upheld and administered the great powers entrusted to the Court by the Constitution and laws of his country, as he understood them, and
that his character was pure beyond reproach. As an upright
and able magistrate, as a learned jurist, he was for twentyeight years the most conspicuous figure upon a bench
adorned by such men as Philip P. Barbour, of Virginia, formerly Speaker of the House; John Catron, of Tennessee, of
acute and vigorous mind, with great power of juridical analysis
and a marvelous capacity for labor; John McKinley, of Alabama, for some years a member of Congress, of high rank at
the bar, and deficient neither in learning nor ability; Peter V.
Daniel, of Virginia, the dissenting judge; Samuel Nelson, of
New York, prominent in his knowledge of patent law; Levi
Woodbury, of New Hampshire, the cotemporary of Webster,
Clay and Hayne in the Senate; Robert C. Grier, a jurist of
capacity; John A. Campbell, of Alabama, of vast learning, of
active, penetrating mind, and of illustrious reputation in after
years as a practitioner before the Court, wherein he once sat as
an Associate, and Benjamin R. Curtis, of Massachusetts, perhaps
the greatest jurist New England ever produced, certainly without a peer since the days of Jeremiah Mason and Theophilus
Parsons. The next generation of Justices, although with one
exception removed by death, can be recalled as familiar and
venerated objects of popular regard. Nathan Clifford, learned
and venerable; Noah H. Swayne, acute and logical; David
Davis, who preferred the curule chair of a Senator to the robes of
a Judge; Chief Justice Chase, the famous author of our national
banking system; William Strong, whose name indicates his
ï~~JUSTICES OF THE COURT. 1
19
hardy qualities of mind; Ward Hunt, sensible and discreet;
Chief Justice Waite, self-possessed, modest, but sturdy and
alert; William B. Woods, Stanley Matthews, brilliant but
erratic; and Samuel F. Miller, not the least able or renowned
of his associates, together constituted a Court which could be
safely relied on for sound law and incorruptible judgments.
To write of the living might savor of indelicacy, but nothing
can be hazarded in the statement that the Court at the present time contains Judges whose profound and accurate learning, more massive and compact than that of former days, has
left but little for future generations to regret.
Although at times shadows have rested upon its reputation
and authority, which it will be the duty of the historian to
notice, the Court enjoys the esteem of the Bar and the confidence of the People. No heavier responsibility rests upon
the President of the United States than that of making fit
appointments when vacancies occur. To sustain the lofty
standard of the Court should be his highest aim. No motives
of personal friendship or of political gratitude should tempt
him to lower the tone of this great tribunal. The most commanding professional abilities, and the most unsullied private
and public character should be demanded of every man who
aspires to such high place. Wisdom, learning, integrity,
independence and firmness have become the adamantine foundations of the Court. The politician, the trickster, the demagogue, the disloyalist, the narrow-minded practitioner, wise in
his own conceit, but unknown beyond a petty locality, should
have no entrance there. Men of strength, of unspotted lives,
whom power cannot corrupt, or influence intimidate, or affection swerve; men of exalted ideas of duty and honor, ready
to dedicate themselves as the highest servants of Heaven to
the noblest mission on earth, are alone fit to be entrusted
ï~~20 THE SUPREME COURT OF THE UNITED STATES.
with the awful power of sitting in final judgment upon the
rights of States and the liberties of individuals in the great
Court of last resort under the Constitution of the United
States.
A history of the Court would be incomplete if it failed
to touch upon the Bar. The character of the Bench is
largely a reflection of the character of the Bar. The Judges
are drawn from its members. Besides this, an able bar can
never tolerate a feeble bench, while an able bench will always
elevate and educate a bar. They act and re-act on each
other. No puerile argument or deceitful statement of facts
can hope to prevail as long as the judges maintain the
purity of the moral atmosphere that surrounds them. The
rectitude of the bench means the rectitude of the bar. They
are corollaries of each other. Viewed as a body, the members of the bar of the Supreme Court of the United States,
with but few exceptions, have been intelligent, astute, laborious, well trained and well informed; manly in conduct, fearless in their defence of freedom and right, upright in principle, just and patriotic, cherishing a high and delicate sense
of individual honor, displaying a proper regard for the dignity of their profession, and ever ready to acquiesce with
profound respect in the decisions of the Court when once
pronounced; while some of them have exhibited abilities of
such transcendent character as to dazzle and astonish the
nation. Among the forty distinguished men who have filled
the office of Attorney-General-the official head of the profession--occur the names of Edmund Randolph, a legal flashlight; Theophilus Parsons, a profound lawyer, though not a
brilliant one; William Wirt, who combined the skill of the
literary artist with the knowledge of a jurist; William Pinkney, the glory of his generation, of whom Judge Story wrote,
ï~~THE BAR OF THE SUPREME COURT.
21
"He possesses, beyond any man I ever saw, the power of
elegant and illustrative amplification;" Henry D. Gilpin, an
accomplished classical scholar; Benjamin F. Butler, a model
advocate; Hugh S. Legare, as m.uch a master of Demosthenes
and Cicero in the original, as of Vattel, Burlamaqui, Grotius
and Wheaton; Reverdy Johnson, the acknowledged head of a
bar once led by Luther Martin and Robert Goodloe Harper;
Caleb Cushing, a man omnipresent in all departments of
learning, and Jeremiah S. Black, whose argument in defence
of the right to trial by Jury will live as long as our institutions last. Besides these were men who owed none of their
influence to official station, who have brought, from all parts
of the country, to the discussion of great questions, powers
of the highest order. They have furnished to the Court the
material of which the majestic temple of our jurisprudence
has been built. It is true, as has been recently remarked
by Mr. Justice Bradley, that the system of railroads and the
consequent ease of communication, have had the effect of
lessening the elevated and eclectic character of the arguments
made before the Court. But there are times still when in a
great cause the highest professional abilities are -taxed to
their utmost, and arguments are made which in splendor of
eloquence and wealth of learning will vie with any of the
olden times.
In truth it is impossible to estimate the intellectual and
moral energies of the American Bar, its brain power, its vigor
of reform, its prudent conservatism,.its thrilling traditions, its
beauties of principle, its glories of achievement, its mighty
potencies to mould the destinies of States. The world of
thought belongs to jurisprudence; the domain of every science
and every field of literature acknowledge her title. The
labors of the philosopher, however gigantic his scale of think
ï~~22 THE SUPREME COURT OF THE UNITED STATES.
ing, are not too lofty for her contemplation, nor dalliance
with the Muses too frivolous to be despised. The universe
has been swept in pursuit of knowledge; the treasuries of
learning have been sacked; the vaults, where the wisdom of
every age and clime is hidden, and the practical experience
of centuries embalmed, have been broken open and rifled.
The Institutes of Gaius, and the Pandects of Justinian; the
Laws of Alfred, and the Magna Charta of King John; the
Ordinances of the Sea; the pages of Coke and Hale; the
decrees of Hardwicke, and the judgments of Stowell; the
blood-bought experiences of the human race, and the lessons
taught by the centuries that have gone, the precious principles bequeathed to us by the Fathers of the Republic have
been stated, reasoned upon, expounded, illustrated and enforced by the mightiest intellects of Bench and Bar. It is
not enough to point to the gilded dome, the fretted roof, the
sculptured architrave, the ornate column or the richly decorated frieze; to impress upon the mind the wondrous character
of the building. Attention should be called to the hidden
arches, the mighty vaults, the base-stones far beneath the
surface of the ground. There is the secret of its strength.
The decisions of the Supreme Court of the United States,
and the principles which they embody, constitute the foundations of our institutions-foundations which neither the earthquake of revolution can shake, nor the eruptive fires of civil
war destroy. The House may become corrupt, the Senate
may yield in time to wealth or ambition, but so long as the
Supreme Court maintains its lofty teachings, so long as its
maxims of interpretation and the principles which underlie its
work are understood and cherished by the loyal people of the
land, so long will a pledge exist that the liberties of America
will prove immortal.
ï~~PART I.
SOURCES OF THE JURISDICTION OF THE SUPREME COURT
OF THE UNITED STATES.
1680-1774.
CHAPTER II
INTRODUCTION: SPECIAL FITNESS OF THE FRAMERS OF THE CONSTUTITUTION FOR
THEIR WORK: CLASSIFICATION OF SOURCES OF JURISDICTION: ADMIRALTY
CASES: COLONIAL VICE ADMIRALTY COURTS: JURISDICTION: ACTS OF TRADE:
COLONIAL JUDGES: EXTENSION OF JURISDICTION: REVENUE CASES: COLONIAIL
OPPOSITION: REMONSTRANCE OF FIRST CONTINENTAL CONGRESS.
T HE Third Article of our Federal Constitution delineates
in striking outlines the jurisdiction of the Federal
Courts, and embodies in three brief sections the pregnant matter out of which has been developed the most remarkable judicial establishment the world has seen.
The first section vests the judicial power of the United
States in one Supreme Court, and in such inferior Courts as
Congress may, from time to time, ordain and establish: it
regulates the tenure of office of all Federal Judges, prescribing
that of good behavior, and guards their compensation against
diminution.
The second section defines the extent of the judicial power,
declaring that it shall extend to all cases in law and equity
arising under the Constitution, the laws of the United States,
and treaties made under their authority; to all cases affecting
ambassadors, other public ministers and consuls; to all cases
23
ï~~24 THE SUPREME COURT OF THE UNITED STATES.
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 one State claiming land under grants of different
States, and between a State, or the citizens thereof, and foreign
States, citizens, or subjects.
The original jurisdiction of the Supreme Court is expressly
limited to all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party;
while in all the other cases mentioned, the jurisdiction is appellate, both as to law and fact, with such exceptions, and
under such regulations as Congress shall make.
Trial by Jury is provided for all crimes, except in cases
of impeachment, and such trial is to be. held in the State
where the crime shall have been committed, or, when not committed within any State, at such place or places as Congress
may by law have directed.
The third section defines the crime of treason against the
United States. The testimony of two witnesses to the same
overt act, or confession in open court, is necessary to a conviction: Congress is empowered to declare the punishment,
but no corruption of blood, or forfeiture, except during the life
of the person attainted, shall be wrought by an attainder.
Such is the language of the Article creating and defining the judicial power of the United States. It is the voice
of the whole American people, solemnly declared, in establishing one great department of that government, which was, in
many respects, national, and in all supreme. It must be patent
to all who are familiar with the fact that our Constitution was
not a creation, but a growth, that these results were not
reached a priori. The truth is that this Article is an epitome
ï~~FRAMERS OF THE CONSTITUTION.
25
of past judicial and legislative experience lighted up by a
sagacious forecast of the future.
Its authors combined a very rare union of the best talents,
information, patriotism, probity, and public influence which the
country afforded. Of the members of the Federal Convention,
thirty-nine had seen active service in the Continental Con.
gress; seven were signers of the Declaration of Independence;
thirty-one were lawyers by profession, of whom four had
studied in the Inner Temple, and one at Oxford under Blackstone; ten had served as Judges in their own States, of whom
four were still upon the Bench; one had been a Judge of the
old Federal Court of Appeals in Cases of Capture; seven had
been chosen to serve as Judges in Courts specially constituted
to determine controversies between the States as to territory
and boundary, under the power conferred on Congress by the
Ninth Article of the Confederation; eight had assisted in
framing the Constitutions of their respective States; three had
aided in the codification or revision of their own State laws;
eight had served as Governors of States; five had been present
at the Annapolis Convention; and three were universally
recognized as oracles upon questions of local government as
well as public or international law. All of them-whether
lawyers or civilians-had witnessed the practical operation of
our judicial institutions under the Crown of England and the
Articles of Confederation, and had enjoyed the best opportunities of observing the merits and defects of both systems.
The profound intellects of James Madison and Alexander
Hamilton, who ranked as jurisconsults, met in high debate such
practical jurists as Oliver Ellsworth, George Wythe, David
Brearley, John Blair, and George Read, and such forensic disputants as James Wilson, Jared Ingersoll, Abraham Baldwin,
and Luther Martin. Their discussions were illuminated by
ï~~26 THE SUPREME COURT OF THE UNITED STATES.
the brilliancy of Gouverneur Morris, John Dickinson, Edmund
Randolph, and John Rutledge, and were tempered by the
ripened wisdom of Franklin, and the marvellous sagacity of
Washington. Not less useful, though of a subordinate degree
of excellence, were the labors of George Mason, Rufus King,
William Samuel Johnson, William Paterson, and Roger Sherman; while the criticisms of such experienced merchants as
Robert Morris, Elbridge Gerry, and Thomas Fitzsimmons, and
such respectable lawyers as Richard Bassett, Gunning Bedford, Jr., and Caleb Strong, contributed no small share to the
general result of the deliberations of such an assemblage of
statesmen.
While abundantly provided with a theoretical knowledge
of the requirements of their task, it may be safely asserted
that in arranging the judicial power they intended chiefly to
enforce what experience had shown to be salutary in preserving harmony among the States and with foreign nations, and
what wisdom dictated as essential to secure obedience to the
authorities vested in the different departments of the Government. Hence, it will be found that a large portion of the
judicial power bestowed by the Constitution of the United
States closely resembles that exercised by the Continental
Congress, although the greater part of the system, as we now
view it, has grown out of the establishment of a General Government expressly designed to affect the concerns of a nation
embracing a continent.
In analyzing the Article of the Constitution relating to
the Judiciary, with a view of tracing the sources of the jurisdiction of the Supreme Court, and of measuring accurately the
extent and value of the lessons of the past, it is proper to
scan the acts of the Continental Congress to ascertain what
steps were taken towards the erection of a Judiciary to
ï~~SOURCES OF JURISDICTION.
27
determine controversies arising out of the War for Independence.
Prior to the outbreak of hostilities the Colonies had their
own separate judicial systems which constituted an important
part of the framework of local government, but these were
manifestly without authority to deal with interests not exclusively local. Several important classes of controversy soon
arose, which in time led to a Federal jurisdiction; such were
admiralty causes, affecting questions of prize; piracies and
felonies committed on the high seas; controversies between
the States, affecting rights of soil and boundary; disputes between individuals claiming under grants from different States;
suits against a State in the courts of another State, and matters relating to the post-offices of the United States.
ADMIRALTY CAUSES.
Of these the Admiralty causes, by far the most frequent
and important, first claim attention.
During the war between France and England, which terminated in the Peace of Ryswick in December, 1697, the colonists had taken advantage of the opportunities afforded them
to carry on a direct commercial intercourse with Scotland and
Ireland. The complaints of English merchants that New
York would not respect the Acts of Trade, that Pennsylvania
and the Carolinas were nests of pirates and rogues, and that
the mariners of New England distributed the products of the
tropics throughout the world, led to the establishment of the
Board of Trade and Plantations, a permanent commission,
consisting of a President and seven members, known as "Lords
of Trade," who were invested with a jurisdiction similar to
that previously exercised by plantation committees of the Privy
ï~~28 THE SUPREME COURT OF THE UNITED STATES.
Council. The statutes for carrying the Acts of Trade into
effect were consolidated; all direct trade with Ireland and the
Colonies, except the export of horses, servants, and provisions,
was prohibited, and, until the Union, Scotland was included,
on the plea that if any imports were allowed they would be
made a cover for smuggling. The appointment of the Colonial Governors was subjected to Royal approval, and an oath
was imposed to enforce the Acts of Trade. All colonial statutes or usages conflicting with Acts of Parliament, were declared void, and, as a further security to British interests,
Courts of Vice-Admiralty were established throughout the
Colonies, in some instances by virtue of a right reserved in
their charters, and in others without such right, with power
to try admiralty and revenue cases without a jury. A strenuous resistance was made, especially in the chartered colonies,
but after long and solemn argument, the doctrine was maintained by the Privy Council that the King had power to establish an admiralty jurisdiction in every domain of the crown,
whether chartered or not. The right of Appeal from the Colonial Courts to the King in Council was also sustained in
accordance with early practice in appeals from sentences in
the English Court of Admiralty, and thus an extensive judicial control over the Colonies was obtained.'
After 1708 all appeals from the vice-admiralty courts
were, in questions of prize, referred to certain Commissioners,
constituting a standing committee of the Privy Council, provided appeals were made within fourteen days after sentence,
and security was given that the appeals would be prosecuted
' Bancroft's "History of the United States." The Author's last Revision, Vol.
II, pp. 79-80; Hildreth's "History of the United States." Revised Ed., Vol. II,
pp. 196-199.
ï~~ADMIRALTY JURISDICTION.
29
with effect:1 and in instance and revenue cases an appeal lay
to the High Court of Admiralty in England and thence to
the Delegates.2
It was again asserted that an appeal lay to the King in
Council but this opinion seems to have been subsequently relinquished.' In England cognizance of revenue cases was never
claimed by the Court of Admiralty; that field being appropriated by the Common law to the Court of Exchequer, but in
the colonies, the Vice-Admiralty Courts obtained a novel and
extensive jurisdiction under the provisions of the celebrated
Navigation Act of I2 Chas. II. c. 2 and the Revenue Act of
7 & 8 William III. c. 22, some features of which were intended
for the more effectual suppression of piracy. The point was
contested on the ground that revenue cases were not in their
nature causes civil or maritime, but in 1754 it was fully and
finally settled in favor of the jurisdiction in the case of the
Vrow Dorothea, which was carried on appeal from the Vice
Admiralty of South Carolina to the High Court of Admiralty,
and thence to the Delegates in England.'
COLONIAL VICE-ADMIRALTY COURTS.
In some of the colonies the power of the Crown to establish Vice-Admiralty Courts was beyond dispute. In Mas1J. Franklin Jameson, "Essays in the Constitutional History of the United
States."-"The Predecessor of the Supreme Court," pp. 13-14. 2 Browne's "Civil and
Admiralty Law," p. 454. Blackstone's "Commentaries," Book III, *69-70. Sergeant's "Constitutional Law," pp. 14-15.
=Note to "The Samuel" i Wheaton, 19 (1816); 2 Browne's "Civil & Admiralty
Law," 493.
s2 Browne's "Civil and Admiralty Law," 493.
4Vrow Dorothea, 2 Rob. 246 (1754). 2 Browne's "Civil & Admiralty Law," 493,
note. Note of Mr. Wheaton to the case of the Sarah, 8 Wheaton, 396 (1823).
Sergeant's "Constitutional Law," p. 5. Chalmer's" Colonial Opinions," pp. 193-512.
ï~~30 THE SUPREME COURT OF THE UNITED STATES.
sachusetts there was a plain reservation in the Charter, but
the power was exercised even where no such reservation existed, and where, by express grant, the prerogative had been
conferred upon the Proprietary. Thus in Pennsylvania the
Charter conferred upon William Penn the soe right of appointing and establishing Judges, and by a subsequent provision he was made personally liable to see to the enforcement of the Navigation Acts and all the complicated requirements of the British colonial trading system, and was further
bound to see that fines and duties in accordance with these
regulations were duly imposed, and that when levied they
found their way into the hands of the proper authorities.'
These functions were at first discharged by the Executive
Council, for we find that, as early as July 12, 1684, upon
information by the Sheriff of New Castle County that he had
seized a ship which was an unfree bottom, it was ordered that
the President, Thomas Lloyd, might empower such as he saw
fit to be a Court of Admiralty for the determination of the
case, and that on all other like occasions the President and
present members might in the absence of the Council proceed
to act according to the necessity of the case. Within two
months a ship called the "Harp" of London was regularly
proceeded against before the Council and condemned as a
French bottom, in no way made free to trade or import goods
into his Majesty's plantations in America, and, under the
forfeiture clauses expressed in the Acts of Navigation, was
sold.2 But in 1693 William Penn incurred the displeasure
of the Court and was for a time deposed from his government, and Benjamin Fletcher was duly commissioned Vice'Charter to Win. Pernn, Sections V, XIV.
*Penna. Col. Records, I. pp. 68-69.
ï~~COLONIAL ADMIRALTY COURTS.
81
Admiral of New York, the Jerseys and New Castle with its
dependencies, and invested with all proper power to create
Vice-Admiralty Courts within these limits? Shortly after
this a Vice-Admiralty Court for Pennsylvaniia and its territories was regularly constituted by royal and not proprietary
authority, and a commission issued under the seal of the
High Court of Admiralty of England to Colonel Robert Quarry
to act as Judge.' By this time Courts of Vice-Admiralty
were in full operation in all of the colonies. Anthony Stokes,
his Majesty's Chief Justice in Georgia, says that all the commissions issued were alike, and in terms declared that the jurisdiction extended "throughout all and every the seashores,
public streams, ports, fresh water rivers, creeks or arms, as well
of the sea as of the rivers, and coasts whatsoever of our said
provinces." ' All causes, civil and maritime, embracing char-,
Historical Notes to the Duke of Yorke's Book of Laws, pp. 539 et seq.
2 Minutes of Penna. Provincial Council, Feb. 12, 1697-8. I Col. Records, 500.
3 Anthony Stokes, "A View of the State of the British Colonies in North
America and the West Indies," pp. 150-168. For form of Commission see Stokes,
p. 166. Benedict's Admiralty,. 142, 16o. Duponceau on Jurisdiction, p. 158.
Sergeant's "Constitutional Law," p. 4, note.
It has been a question learnedly discussed by those who have examined the
matter whether the language quoted in the text conferred a different or more
extensive jurisdiction than that allowed in England from the interpretation given
by the Common Law Courts to the restraining statutes of 13 and 15 Rich. II. ch.
3, 2 Henry IV. ch. iI, and 27 Elizabeth ch. ii, and whether in point of fact
the colonies were familiar with a larger jurisdiction than that prevailing in the
mother county. The weight of authority, however, is in favor of the assertion
that the admiralty jurisdiction actually exercised in the colonies transcended the
narrow bounds prescribed by the jealousy of the Common law, and closely approached that now exercised by the Courts of the United States. Upon this side
of the controversy appear the names of Story, Wayne and Nelson, sustained by
those of Washington, Catron, McLean, and the overshadowing authority of Marshall
and Taney; and on the other appear those of Woodbury, Baldwin and Daniel,
whose dissent is powerfully expressed in opinions as remarkable for their learning
and ingenuity as those of the majority of the Court. See De Lovio v. Boit, 2
ï~~32 THE SUPREME COURT OF THE UNITED STATES.
ter parties, bills of lading, policies of marine insurance, accounts and debts, exchanges, agreements, complaiits, offences,
and all matters relating to freight, maritime loans, bottomry
bonds, seamen's wages, and many of the crimes, trespasses
and injuries committed on the high seas or on tidewaters were
included within their jurisdiction. They also took 'cognizance
of all cases of penalties and forfeitures under the Act of 7 &
8 William III., and exercised a general authority to apprehend and commit to prison persons accused or suspected of
piracy.1
An examination of the records of the Vice-Admiralty
Court in Pennsylvania from 1735 to 1746, the only portion
now known to exist, discloses the fact that its business, though
inconsiderable in amount, consisted of proceedings by the Collector of Customs by information against vessels and goods
for breaches of the Acts of Parliament relating to the revenue;
libels for seamen's wages; orders for the surveys of damaged
vessels and goods and of wrecks, appraisements, with power
to the Commissioner appointed to adjust the salvage in cases
of wreck; records of protests, and, towards the end of the time,
registers of letters of marque and reprisal granted by the governors, and prize proceedings against vessels captured from
the French and Spaniards.
Gallison, 398 (1815). Waring v. Clark, 5 Howard, 459 (1847); New Jersey Steam
Navigation Co. v. The Merchants' Bank, 6 Howard, 344 (1848); Wilmer v. The
Smilax 2 Pet. Ad. Dec. 295 (1804); Davis v. the Brig Seneca, 18 American Jurist,
486 (1838); The Sloop Mary, I Paine, 673 (1824); Bains v. The Schooner James and
Catherine, I Baldwin, 544 (1832); The Huntress, Davies R. o104, note; Peyroux v.
Howard, 7 Peters, 324 (1833); U. S. v. Coombs, 12 Peters, 72 (1838); The Schooner
Tilton, 5 Mason 465 (183o).
1 Benedict's Admiralty,. 161. Duponceau on Jurisdiction, pp. 137-140. Lawrence Lewis, "The Courts of Pennsylvania, in the 17th Century" in "Penna. Magazine of History and Biography," Vol. V. pp. 177-178.
ï~~COLONIAL VICE-ADMIRALS.
88
COLONIAL VICE-ADMIRALTY JUDGES.
From the names and characters, both official and private,
of the Judges who discharged the duties of the vice admiralty,
we catch glimpses of the fluctuating politics of the times both
here and abroad. In New York in 1682, under the authority
of James, Duke of York, Thomas Dongan acted as ViceAdmiral. Six years later Governor Edmund Andros was
commissioned by James II, but his term of service was as
brief as that of his royal master, for so severe and rapacious
was his rule, that he was seized, imprisoned and sent to England for trial, and the next year William and Mary bestowed
the office upon Henry Slaughter. In 1692, Governor Benjamin Fletcher acted under a commission which embraced "ye
province of New Yorke, Colonyes of East and West Jersey,
province of Pennsilvania, et Countries of New Castle and its
dependencies." In 1698 we find the popular and highly accomplished Earl of Bellamont acting in New York, Massachusetts Bay, New Hampshire and its dependencies; his wise
and equitable administration being in striking contrast with
that of his successor, Edward Hyde, Lord Cornbury, the odious persecutor of the Quakers, Governor of New York, Connecticut, East and West Jersey, who was commissioned by
William III. in 1701, the monarch expressly reserving the
right of appeal to the High Court of Admiralty in England.
Two years later the well-known Roger Mompesson exercised
his sway from the Piscataqua to the Capes of the Delaware,
for his commission ran into Massachusetts Bay, New Hampshire, Connecticut, Rhode Island, New York, East and West
Jersey, Pennsylvania, New Castle and its dependencies,' but in
1Street's "New York Council of Revision," 75. I Logan Papers, 200.
3
ï~~34 THE SUPREME COURT OF THE UNITED STATES.
some way Col. Quarry again secured a commission for Pennsylvania and West Jersey, which superseded that of Mompesson to that extent.' In 1704 John Moore was deputy Judge
of the Vice-Admiralty for Col. Seymour, Governor of Maryland,
and Vice-Admiral of Maryland, Pennsylvania and New Jersey;
while in 1721, under George I., Mompesson was displaced in
New York by Francis Harrison, and once more, in Pennsylvania,
by William Assheton, a cousin of William Penn, to whom a
commission was issued by Governor Keith. In 1735 the "Hon.
Charles Read, Esq.," is called on the "Docquets" "the Comissary of the Court of Vice-Admiralty of the Province of Pennsylvania," and on the Minutes of his Court is styled "Sole Judge." 2
In 1737 the High Court of Admiralty in England bestowed the
office in Pennsylvania upon Andrew Hamilton, the most renowned
colonial lawyer of his day, who ten years before had won worldwide celebrity by his bold and eloquent defence of John Peter
Zenger, anticipating by fifty years the contention of Erskine
that in cases of criminal libel the jury were the judges of
the law as well as of the facts. His successor, in 1741, was
Thomas Hopkinson, "the ingenious Friend," to whom Franklin acknowledged himself indebted for a communication of
"the power of points to throw off the electrical fire," and who
yielded the place after ten years of service to Edward Shippen, afterwards Chief Justice of Pennsylvania, who made
the position one of importance and great pecuniary value,
until, in 1768, the appointment of Jared Ingersoll, the elder,
of Connecticut, as Commissioner of Appeals in Admiralty for
i Logan papers, 281, Nov., 1703. Penna. Col. Records, Vol. I, p. 575.
2Martin's "Bench and Bar of Philadelphia," p. 5. Records of the Vice-Admiralty Court in Pennsylvania, in the Office of the Clerk of the District Court of the
United States for the Eastern District of Pennsylvania.
ï~~LAST OF THE VICE-ADMIRALS.
35
New York, New Jersey, Pennsylvania, Maryland and Virginia, drew much business away from the regular Vice-Admiralty Courts. Shippen held the place, however, until the outbreak of the Revolution, when he lost all the offices he had
held under the crown. In New York, about 1740, Lewis Morris had succeeded Francis Harrison, and was himself sucSceeded, after age and infirmities had disabled him, in 1762 by
his son, the Hon. Richard Morris, who was in time displaced by Jared Ingersoll, the father of the member of the
Federal Convention of the same name.1
Public events were now so shaping themselves as to render it of little consequence who held the office, except to
make the incumbent an object of suspicion and dislike. The
skies were overcast, and the storm-clouds of the coming revolution were soon to emit the lurid lightnings of war.
COLONIAL GRIEVANCES.
In 1768, in the spirit of aggression which had animated
the Stamp Act, an Act of Parliament was passed to establish
the Courts of Vice-Admiralty in all the colonies on a new
model, expressly for the purpose of more effectually recovering the penalties and forfeitures imposed by the Acts framed
for the purpose of raising a revenue in America. Their juris'The materials of the foregoing account are to be found in Stokes' "View of
the Colonies;" Benedict's "Admiralty," H 142-145; Penna. Col. Records, Vol. III.,
p. 172, Vol. IV., p. 250; Lewis' "Courts of Pennsylvania in 17th Century." Penna.
Mag. of History and Biography, Vol. V., p. 141; Sergeant's "Constitutional Law,'"
note to p. 4; Keith's "Provincial Councillors of Penn-sylvania," pp. 56-265; 2 Proud's
"History of Pennsylvania," p. 291; Pennsylvania Magazine of History and Biography,
Vol. VII., p. 23; Martin's "Bench and Bar of Philadelphia,"--the work of a painstaking and accurate antiquary; The Records from 1735 to 1746 of the Colonial ViceAdmiralty Court in Pennsylvania.
ï~~36 THE SUPREME COURT OF THE UNITED STATE S.
diction was extended far beyond the ancient limits, and the
obnoxious statutes were stretched, not only to the collection
of duties, but to the trial of causes arising merely within the
body of a county infra corpus comitatus, and but remotely
connected with admiralty or revenue affairs.'
These measures were met with angry remonstrances on the
part of the colonists, which soon ripened into open opposition.
The powers given to the Admiralty Courts to dispense with
juries were denounced "as instances of grievous oppression,
and scarce better than downright tyranny." In the words of
John Adams, when announcing the declaration of the town of
Braintree: "The most grievous innovation of all is the extension of the power of courts of admiralty, in which one
judge presided alone, and, without juries, decided the law and
the fact, holding his office during the pleasure of the King,
and establishing that most mischievous of all customs, the
taking of commissions on all condemnations." This language
was echoed by Conway, in the House of Commons; the Act,
he said, breathed oppression; it annihilated juries and gave
vast power to the Admiralty Courts.2 Another vicious feature
was that the Judges of the Admiralty derived their emoluments exclusively from the forfeitures which they themselves
had full power to declare.3
For nine years the contest was fiercely waged, and finally
in the Address to the People of Great Britain, a paper drawn
by John Jay, and adopted by the First Continental Congress,
on the 21st of October, 1774, it was made the burden of bit14 Geo. III. c. 15-c. 34. 5 Geo. III. c. 25. 6 Geo. III. c. 52. 7 Geo. III. c. 41, c.
46. 8 Geo. III. c. 3. 22.
2 Bancroft's "History of the United States," Author's Last Revision, Vol. III. pp.
147-205.
3 Journals of Congress, Vol. I. pp. 21, 33, 47.
ï~~COLONIAL ADDRESSES.
87
ter complaint that it had been ordained by Parliament that
whenever offences should be committed in the colonies against
particular acts imposing duties and restrictions upon trade,
the prosecutor might bring his action for the penalties in the
Courts of Admiralty, by which means the subject lost the
advantage of being tried by a jury of the vicinage, and was
subjected to the sad necessity of being judged by a single
man, a creature of the crown, and according to the course of
a law which exempted the prosecutor from the trouble of
proving his accusation, and obliged the defendant either to
evince his innocence or to suffer.' In the Address to the
Inhabitants of the Colonies it was boldly charged that the
judges of the Vice-Admiralty Courts, appointed by the crown
and dependent upon it for support, were empowered to receive
their salaries and fees from the effects to be condemned by
themselves.2 The same grievance was dwelt upon in the
Petition to the King.' On the 24th of October, 1775, Congress entered into the celebrated Articles of Association,' and
declared that the English Crown had extended the powers of
the Admiralty Courts beyond their ancient limits, depriving
the American subject of a trial by Jury, and authorizing the
Judges' certificate to indemnify the prosecutor from damages;
that oppressive security was required from a claimant of ships
and goods before he could be allowed to defend his property.
It was also stated that a Court had been established in
Rhode Island for the purpose of taking colonists to England
to be tried, subject to all the disadvantages that result in a
1Journals of Congress, Philadelphia, 1777, Vol. I. p. 41.
Z Ibid., pp. 49-51.
SIbid., pp. 68-71.
SIbid., p. 36.
ï~~38 THE SUPREME COURT OF THE UNITED STATES.
foreign land "from want of friends, want of witnesses, and
want of money."
Thus it appears that in every important State paper of
the period the abuses of the admiralty powers were denounced
in angry terms as substantial violations of the rights of
freemen.
ï~~ACTS OF CONTINENTAL CONGRESS.
89
CHAPTER III.
EFFORTS TO SECURE REDRESS: STEPS TOWARDS A FEDERAL JURISDICTIONI: WASHINGTON'S LETTERS: ESTABLISHMENT OF STATE ADMIRALTY COURTS: APPEALS
TO CONGRESS REGULATED: METHODS OF PROCEDURE.
EFFORTS TO SECURE REDRESS.
FOR almost a year the energies of Congress were chiefly
directed to a publication of the wrongs of the colonies,
and in futile efforts at reconciliation. Further Addresses were issued to the inhabitants of Quebec and Canada,
to the Assembly of Jamaica and to the people of Ireland, by
which it was endeavored to enlist their sympathies in behalf
of their suffering fellow-subjects. Non-importation, non-exportation and non-consumption agreements were entered into.
After the war had actually begun, the military and naval forces
were put upon a Continental basis, officers were commissioned,
a Commander-in-chief was appointed, and rules and regulations
for the army and navy were adopted. The questions of stores
and supplies, the manufacture of powder and arms, the furnishing of troops, the appointment of Continental treasurers, the
establishment of a general hospital and general post-office,
the fixing the quota of troops and money for each colony, the
emission of bills of credit, the consideration of military movements in the North, the siege of Boston, the operations in
the neighborhood of Crown Point and Ticonderoga, and
correspondence with the agents of the colonies in England in
settling their accounts occupied, almost exclusively, the attention of Congress. As time went on, however, and outrages
upon American commerce were committed by British ships of
ï~~40 THE SUPREME COURT OF THE UNITED STATES.
war, attention was called to the necessity of some effective
method of redress by placing the authority of law behind
the force of arms. The first step was taken in Massachusetts.
Elbridge Gerry, a young merchant of Marblehead, and a
member of the Second Provincial Congress during its session
of June, 1775, proposed the appointment of a committee to
prepare a law to encourage the fitting out of armed vessels,
and to establish a Court for the trial and condemnation of
prizes. Although opposed on account of its apparent inconsistency with the provincial character of Massachusetts, the
law as reported was passed on the loth of November, 1775, and
is "the first actual avowal of offensive hostilities against the
mother country to be found in the annals of the Revolution."1
The preamble is a curious effort to reconcile the theory of
obedience and the fact of resistance; to maintain nominal allegiance with actual rebellion. It was ingeniously grounded on
the royal charter of the Province which authorized the levying
of war against the common enemy of both countries, and declared that Great Britain had become such an enemy with her
ships of war and armies employed against the common interest,
and that accordingly, as loyal subjects, the men of Massachusetts were bound to employ all the power given by the Charter
to capture and destroy them.2 John Adams termed this one of
the "boldest, most dangerous and most important measures
and epochas in the history of the new world-the commencement of an independent national establishment of a new maritime and naval power."
1 Austin's "Life of Gerry," Vol. I. p., 94.
' The Act and its Preamble were printed in the London Magazines of the day as
a political curiosity. The Act itself is printed in its entirety in Austin's "Life of
Gerry," Vol. I., Appendix A. It is also printed in the Boston Gazettlle of Nov.
13, 1775.
ï~~WASHING TON'S SUGGESTION.
41
STEPS TOWARDS A FEDERAL JURISDICTION.
In the Autumn of 1775 there were two classes of armed
vessels cruising in the waters of Massachusetts, one sailing
under the authority of the Continental Congress and the other
under the authority of the Massachusetts Assembly. Captures
were made by each, and conflicting questions of prize arose
before any proper provision had been made by Congress for
the regular condemnation of captured vessels. General Washington, then conducting the operations of siege against the
town of Boston, found himself both embarrassed and annoyed
by constant references for the determination of these questions. In a letter addressed to the President of Congress,
dated the IIth of November, 1775, he enclosed a copy of the
Massachusetts law, and declared that as the armed vessels
fitted out at the Continental expense did not come under its
terms, he would suggest that Congress should point out a
summary way of proceeding. He then pertinently asks:
"Should not a Court be established by authority of Congress
to take cognizance of prizes made by the Continental vessels?
Whatever the mode is which they are pleased to adopt, there
is an absolute necessity of its being speedily determined on;
for I cannot spare time from military affairs to give proper
attention to these matters." x
Not hearing of the resolves of Congress, in a letter of
December 4, 1775, he again declared that it was some time
since he had suggested a Court for the trial of prizes made
by the Continental armed vessels, which he would "again
take the liberty of urging in the most pressing manner."2
1 Sparks' "Life and Letters of Washington," Vol. III.. pp. 154-155.
2 Ibid. Vol. III., p. 184.
ï~~42 THE SUPREME COURT OF THE UNITED STATES.
On the 26th of the same month, he wrote to Richard Henry
Lee, "I must beg of you, my dear Sir, to use your influence
in having a Court of Admiralty or some power appointed to
hear and determine all matters relative to captures; you cannot conceive how I am plagued on this head, and how impossible it is for me to hear and determine upon matters of this
sort, when the facts, perhaps, are only to be ascertained at
points 40, 50 or more miles from Boston, without bringing
the parties here at great trouble and expense. At any rate,
my time will not allow me to be a competent judge of this
business."
Although Washington appears to have been in ignorance
of the action of Congress, they were not inattentive to the
subject-matter of his communications. In fact, they acted
with remarkable promptitude. His first letter, received six
days after its date, was immediately referred to a special
committee consisting of George Wythe, Edward Rutledge,
John Adams, William Livingston, Benjamin Franklin, James
Wilson and Thomas Johnson.2 On the 25th of November,
1775, they recommended that armed vessels and ships of force
should be fitted out; that all war vessels which should fall
into the hands of the colonists should be seized and forfeited,
and that all transports containing naval or military stores for
the use of the British army or navy should be seized and
their cargoes confiscated. In order to give these resolutions
effect and subject prizes to judicial condemnation, Congress
suggested to the several legislatures to erect Courts of justice,
or give jurisdiction to Courts then in being, for the purposes
of determining all cases of capture, and to provide that all
1 Sparks' " Life and Letters of Washington," Vol. III. p. 270.
1Journals of Congress, Vol. I. p. 183.
ï~~SUGGESTIONS OF CONGRESS.
48
trials be had by a jury under such qualifications as should
seem meet. It was ordered that all prosecutions should be
commenced in the Court of that colony in which captures
should be made; if no such court be at that time erected, or
if the capture be made upon the open sea, then in the court
which the captor should find the most convenient; but no
captor was to be permitted to remove his prize from any
colony competent to determine concerning the seizure after he
had carried his prize within any harbor of the same. The important provision was made that in all cases an appeal should
be allowed to Congress, or such person or persons as they
should appoint, for the trial of the appeals; appeals were to
be demanded within five days after definitive sentence, and
lodged with the Secretary of Congress within forty days
afterwards, and security was to be entered
Provision was also made for the proper distribution of
prize-money.
This act was the first step towards the establishment of a
national judiciary. But, though in the right direction, it did
not reach its end. It created no tribunal, it provided no
method of procedure, and no means of enforcing decrees. It
was silent as to original jurisdiction, and left the extent of
the appellate power in doubt; so much so, indeed, that collision occurred subsequently at several points between the
States and Congress. It engrafted trial by jury upon admiralty proceedings, a novelty of uncertain value, as the event
proved. It assumed authority which it did not undertake to
define, and must be regarded as a crude and imperfect piece
of legislation. Although moulded into more regular shape by
various amendments, it is still interesting as the source of
SJournals of Congress, Vol. I. p. 184.
ï~~44 THE SUPREME COURT OF THE UNITED STATES.
the admiralty jurisdiction exercised by Congress during the
entire Revolutionary period.
Some of its defects did not escape the penetration of
Washington, who wrote, "The resolves relative to captures
made by Continental armed vessels only want a Court established for trial to make them complete." It was not until five
years later that this thought was acted on.'
STATE ADMIRALTY COURTS.
In the meantime the colonies, except Massachusetts, whose
action had preceded that of Congress, adopted with more or
less promptitude the suggestion that they should erect Admiralty Courts, or clothe existing tribunals with the requisite
authority.
Pennsylvania, as was to be expected from her close contact with Congress, led the way by the action of her Council
of Safety, on the 3d of February, 1776, in approving the
resolves of Congress as to the distribution of prize-money,2
and on the 26th of March her House of Representatives
resolved that there should be erected a Court of Admiralty,
with an "able and discreet" person as a Judge, to take cognizance of and try the justice of captures, with power to
summon a jury. A Marshal was appointed and the forms
1 Professor Jameson has shown in an interesting and learned manner that the
preference of Congress for trial by committee was mainly due to the presence of a
doubt whether the powers of the Federal Government extended to the creation of
a court, and also to the fact that the colonists had been accustomed to see prize
cases carried on appeal from the Colonial Vice-Admiralty Courts to the standing
commissioners of appeal of the Privy Council. "Essays in the Constitutional History of the United States," pp. 13-15.
2 Minutes of Council of Safety, io Penna. Col. Records, 476.
ï~~STATE ADMIRALTY COURTS.
45
of the libel and other process and proceedings were regulated.
In all cases an appeal was to be allowed to Congress, and
provision was made for taking testimony by depositions, or
ex parte upon notice, de bene esse.' Rhode Island in January, South Carolina in April, Connecticut and Maryland in May,
New Hampshire in July, New Jersey and Virginia in October, Georgia in November, Delaware, and North Carolina
in December of 1776, instituted similar Courts under various
titles. New York did not act until March of 1778, and then
restricted the jurisdiction by re-enacting in substance the provisions of 15 Ric. II. c. 3, which forbade the cognizance of any
matters not occurring strictly upon the sea.2 In most of the
colonies trial by jury was provided for. Maryland left it to
the option of the parties, Connecticut and Georgia gave it to
special County Courts, Pennsylvania, New Hampshire and
Massachusetts made it obligatory. In some of the States the
Judge of the Admiralty was appointed by a simple commission
without a statutory specification of his powers, or any expression in his commission as to their extent; in others the
SVotes of the Pennsylvania Assembly, Vol. 6, p. 698. This resolve was supplied by the Act of 9th. September, 1778, recorded in Law Book I, p. 212, which
provided that "The finding of said jury shall establish the facts without re-examination or appeal," and was in time supplanted by that of 8th March, 1780, which abolished trial by jury in Admiralty causes and restored the practice of the Civil law.
McKean's Edition of Laws of Pennsylvania, p. 308. Prof. Jameson states that the Pennsylvania Court was established before the middle of January, 1776, and cites a letter of
Thomas Lynch to Washington, dated January 16th, of that year, published in the
"Correspondence of the Revolution," edited by Sparks, Vol. I., p. 125, but an examination of the letter leads me to believe that the writer referred to the Resolves
of Congress of the preceding November. This is confirmed by the record evidence
above cited, as well as by the fact that the Pennsylvania House of Representatives
had adjourned from Nov. 25, 1775, until Feb. 12, 1776.
2 I Greenleaf's "Laws of New York," I, I18, 150, 152, 338. Benedict's "Admiralty," 166.
ï~~46 THE SUPREME COURT OF THE UNITED STATES.
courts were established with powers regulated by statute.
The right of an appeal to Congress was variously provided
for; the concession, as in Pennsylvania, South Carolina and
Virginia, being liberally extended to all cases, while in others,
as in New Hampshire and Massachusetts, it was restricted
jealously to cases of capture by vessels fitted out at the
charge of the United States, but in all other cases an appeal
was to lie to the Supreme Court of the State. Thus it will
be seen that in the different States the constitution of the
Admiralty Courts and the limits of their jurisdiction departed
widely from each other.1 Changes of sentiment towards the
Federal Government are distinctly visible from time to time.
A reactionary feeling displayed itself in parts of New England. Rhode Island, by Act of November, 1780, reciting that
as some States disallowed an appeal, and that those who do
and those who do not are therefore on an unequal footing, declared that if any citizen of a State which disallowed an
appeal to Congress was dissatisfied with the judgment of the
Admiralty Court of Rhode Island, he might have an appeal
to the Supreme Court of the State. New Hampshire, who had
previously confined the jurisdiction of her own appellate Court
to cases of capture made by vessels fitted out by her own citizens, now extended it to captures effected by Continental yes'The foregoing account is drawn from Benedict's "Admiralty," 166; Jameson's "Essays in the Constitutional History of the United States," pp. 11-12; J. C.
Bancroft Davis, "The Committees of the Continental Congress chosen to hear and
determine appeals from Courts of Admiralty and the Court of Appeals in Cases of
Capture," 131 U. S. Reports, Appendix XIX.; Doane v. Penhallow, I Dallas,
218 (1780); Penhallow v. Doane, 3 Dallas 57 (1795); United States v. Peters, 5 Cranch,
115 (18o9); and the Laws, Schedules and Constitutions of the various States, as contained in the magnificent and unrivaled Tower Collection of Colonial Laws, in
the Library of the Historical Society of Pennsylvania.
ï~~STATE ADMIRALTY COURTS.
47
sels and vessels of New Hampshire jointly, endeavoring thereby
to curtail the powers of Congress.' At the same time Pennsylvania abolished trial by jury in admiralty causes, and
provided that in all cases of prize, capture or recapture, the
facts should be determined by the law of nations and the
acts and ordinances of Congress, before the Judge of Admiralty, by witnesses, according to the course of the Civil law,
and that in all cases an appeal should lie from the final
decree of the State judge to such judges or court as Congress shohld appoint to determine such appeals.2 Virginia,
too, provided that her judges of admiralty should be governed
in their proceedings and decisions by the regulations of Congress as well as by the Acts of her Assembly; by the laws
of Oleron and the Rhodian and Imperial laws, and by the
laws of nature and nations, thus creating a wide and beneficent jurisdiction, far more liberal than that dictated by the
policy of sister States, or contained within the narrow limits
observed by the English Admiralty at the time.3 A little later
New York again curtailed her maritime jurisdiction, and
declared that her Court of Admiralty should not meddle
with anything done upon the waters of the State within
the limits of a county.'
1 Rhode Island Schedules, Penhallow v. Doane, 3 Dallas, 54 (1795).
2 Act of March 8, 1780, McKean's Edition of Pennsylvania Laws, 308. This act
was due no doubt to the danger of maintaining the controversy which arose out of
the famous case of Gideon Olmstead, hereafter noticed in the text, which produced a serious collision between Pennsylvania and Congress, and led to conferences between Committees of Congress and of the State Legislature.
3 Laws of Virginia, 1779, Chap. 26; (Nicolson's Laws, p. 104.)
4 Laws of New York, 14th Peb., 1787. Chap. 24 (Vol. II. p. 394.)
ï~~48 THE SUPREME COURT OF THE UNITED STATES.
CHAPTER IV.
CONGRESSIONAL COMMITTEES OF APPEAL: SPECIAL COMMITTEES: STANDING COMMITTEE OF APPEAL: GROWTH OF FEDERAL POWER: CASE OF SLOOP "ACTIVE."
FROM this brief view of the State establishments we
turn to the action of Congress. The purpose of that
body to take only appellate jurisdiction was misunderstood at the outset. The first application was for the
exercise of its original jurisdiction, made on the 31st of January, 1776, by Mr. Barbarie, owner of a sloop and cargo said
to have been taken by the enemy and retaken by one of the
Continental vessels of war; but he was informed that he
ought to prosecute his claim before the Court to be appointed
in the colony to which the prize had been carried.' A similar application was made in the case of the Nancy, but it
was resolved that "the cause pertaineth to the judicature
established in the colony of Connecticut for hearing and
determining matters of the kind."'2 On the 4th of April,
however, Congress was tempted, upon the memorial of an
interested party, to regulate the sale of a prize-vessel, which
had been run ashore, and the disposition of the proceeds; but
as it afterwards appeared that the prize-master had acted contrary to the mode prescribed, and without the authority of
Congress, the previous resolution was repealed.3
1 Journals of Congress, Vol. II, p. 46. Judge Davis's Pamphlet on Federal
Court of Appeals in Cases of Capture, p. 4; 131 United States Reports, Appendix XIX.
2 Ibid. p. 74.
3 Ibid. pp. 116-174. Davis's Pamphlet, p. 5.
ï~~APPEALS TO CONGRESS.
49
The first appeal came up on the 5th of August, 1776, in
the case of the Thistle which had been tried in the previous June before Judge George Ross and a jury in the
Admiralty Court of Pennsylvania, upon the libel of the commander of the Congress, a private sloop-of-war, which had
captured the schooner in the Gulf of Florida while bound on
a voyage to Jamaica, with a cargo of supplies intended, as
was alleged, for the British army. The case was heard upon
libel, answer and proofs, after due notice in the public prints
of the day, and was conducted by the well-known Joseph
Reed and the celebrated William Lewis, then on the threshold
of his distinguished professional career. The jury found, contrary to the overwhelming weight of the testimony, that a
part of the vessel and cargo belonged to inhabitants of Great
Britain, and that the residue belonged to persons who were
also enemies, and thereupon the Judge entered a decree of
condemnation as prize and directed a public sale.' From this
verdict and sentence the owner appealed. At first there was
a disposition on the part of Congress to hear the case as a
body, but after various postponements it was referred to a
special committee consisting of Messrs. Stockton, Huntington,
Paine, Wilson and Stone, whose report, reversing the decree,
was received and approved on the 25th of September.
A few days later the gallant exploits of John Manly,
Daniel Waters and John Ayres, commanders of the three
armed vessels, Hancock, Lee and Lynch, who did so much
to create a reputation for the American navy, were reviewed in an appeal by the captors of the Elizabeth against
1 See original papers in the case of the Thistle in the Office of the Clerk of
the Supreme Court of the United States. Also Supplement to Pennsylvania Evening Post, June 15, 1776, No. 219, p. 301.
2 Journals of Congress, Vol. II, pp. 280, 289, 307, 328, 390.
ï~~50 THE SUPREME COURT OF THE UNITED STATES.
a decree of Judge Joshua Brackett, of the Court Maritime of New Hampshire, discharging the vessel and cargo.
Messrs. Paine, Huntington and Stone again acted as a special
committee, with Messrs. Wythe and Smith, when after full
argument by counsel, and a most elaborate review of the facts
drawn up by the future Chancellor of Virginia, the report of
the committee, reversing the decree, was, after a slight modification, adopted, and the cause was remitted to the State
Court with directions to proceed and carry out the judgment
of the appellate court.'
The practice of referring appeals as they were presented
to special committees, the members of which were styled
"Commissioners," was adhered to in several cases;2 but in
the mean time, it was determined, with a view of securing
some uniformity of action, that a special committee of four
should be appointed to review such of the resolutions of Congress as related to the capture and condemnation of prizes,
and report what alterations or additions should be made.?
This duty was assigned to George Wythe, John Rutledge,
SSee case of the Elizabeth. Papers on file in the Office of the Clerk of the
Supreme Court of the United States. Journals of Congress, Vol. II, pp. 369, 370,
387, 389, 393.
2 The Charming Peggy, referred, October 17, 1776, to Messrs. Huntington, Paine,
Wythe, Smith and Wilson. Journals of Congress, Vol. II. p. 420. The sloop Betsy,
referred, November 7, 1776, to Messrs. Wythe, Paine, Wilson, Hooper and Rutledge. Ibid. p. 449. The sloop Vulcan, referred, November 27, 1776, to Messrs.
Wythe, Paine, Wilson, Hooper and Chase. Ibid. p. 482. Libel of Esek Hopkins v.
Richard Derby, ordered December 31, 1778, to be prosecuted before the Committee of Appeals (none named as members). Ibid. p. 320. The brig Richmond, referred, January 4, 1777, to the committee appointed on November 27th last, Mr.
J. D. Sergeant and Mr. William Ellery being named in place of Mr. Wythe and
Mr. Paine. Journals of Congress, Vol. III, p. 6. The brig Phoenix, referred,
January II, 1777, to the same committee. Ibid. pp. 16, 195.
3 Journals of Congress, Vol. II. p. 420, 17th October, 1776.
ï~~STANDING COMMITTEE OF APPEALS.
Robert Treat Paine and Samuel Huntington, and as the
result of their conference it was resolved, on the 3oth of
January, 1777, that a Standing Committee, consisting of five
members, should be appointed to hear and determine upon all
appeals brought against sentences passed on libels in the
Courts of Admiralty in the respective States, agreeable to the
resolutions of Congress, and that the several appeals, when
lodged with the Secretary, be by him delivered to them for
their final determination.' The members chosen were James
Wilson, of Pennsylvania, Jonathan Dickinson Sergeant, of
New Jersey, William Ellery, of Rhode Island, Samuel Chase,
of Maryland, and Roger Sherman, of Connecticut. To these
were added, in the following March, John Adams, of Massachusetts, George Read, of Delaware, and Thomas Burke, of
North Carolina. The composition of this committee was favorable to an intelligent and dispassionate performance of its
duties, as its members were among the most experienced lawyers in the public service, but in less than two months it
was found to be too numerous for efficient work, and it was
again reduced to five, any three of whom were empowered to
hear and determine upon any appeal. Messrs. Wilson, Adams,
Sergeant and Burke were retained, and James Duane, of New
York, was added, with authority to appoint a register.2 The
conviction was gaining ground, however, as the lessons of
experience multiplied, that the only method of avoiding the
1 Journals of Congress, Vol. III, p. 43.
2 Ibid. pp. 84-174. Changes took place from time to time in the composition of
this committee, until January 15, 1780, when Congress established a Court of Appeals.
Those who are interested in tracing these changes will be spared the labor of hunting
through the Journals of Congress by consulting the Pamphlet of Judge J. C. Bancroft Davis, on the Federal Court of Appeals, in Cases of Captures, pp. 5-6-7.
131 United States Reports, Appendix XIX.
ï~~52 THE SUPREME COURT OF THE UNITED STATES
evils of frequent changes in a body entrusted with judicial
powers, was to adopt the original suggestion of Washington;
and on August 5, 1777, a day was assigned to take into
consideration the propriety of establishing a Court of Appeals 1
The subject, though discussed from time to time, was not
finally acted on until the i15th of January, 1780. It is important to observe that the necessity of vesting in Congress
the power to establish judicial tribunals, consisting of Judges
who should be independent of that body, had been fully discussed and amply provided for in the final draft of the Ninth
Article of Confederation. Though not agreed upon until November 15, 1777, or finally ratified by all the States until
March, 1781, yet there was displayed in its various stages of
development the rapid growth of the idea that the United
States in Congress assembled should have the sole and exclusive right of establishing rules for deciding, in all cases, what
captures on land or water should be legal, and in what manner prizes taken by land or naval forces in the service of
the United States should be divided or appropriated. To these
were added the power of granting letters of marque and
reprisal in time of peace, appointing Courts for the trial
of piracies and felonies committed on the high seas, and
establishing Courts for receiving and determining finally appeals in all cases of capture, with the proviso that no member of Congress should be appointed a judge of any of said
Courts, and further, that the judicial power to be established
by Congress should be the last resort on appeal in all disputes between two or more States concerning boundary or
jurisdiction, as well as in all controversies concerning the
1 Journals of Congress, Vol. III, p. 312.
ï~~THE SLOOP ACTIVE.
private right of soil claimed under different grants of two or
more States.'
Herein lay the germ of our National judiciary-the seminal principle which subsequently unfolded itself in the Constitution of the United States. The public mind was now
ready to receive it, the soil had been prepared, and it required
but time and favorable circumstances to quicken it.
A case was now presented to Congress which made a
profound and permanent impression, and did more to expose
the weakness of the system under which the States were
operating than any other event to be found in the judicial
annals of the period.
In September, 1778, Gideon Olmstead, of Connecticut, and
three associates were captured by the British and carried to
Jamaica, where they were put on board the sloop Active,
bound for New York with a cargo of supplies, and forced to
assist in the navigation of the vessel. They rose upon the
master and crew, took possession of the sloop, and steered for
Little Egg Harbor. When in sight of land they were forcibly taken by the armed brig Convention, belonging to
Pennsylvania, and carried to Philadelphia, where the Active
was libeled as prize. A claim was also made by the captain
of a privateer cruising in concert with the Convention. The
case was tried in the State Admiralty Court before Judge
Ross and a jury, under an act which provided that the find' compare the projected Articles of Confederation presented by Dr. Franklin on
the 21st of July, 1775, with those in the handwriting of John Dickinson, on the
12th of July, 1776, and those reported in the new draft of 2oth of August, 1776, by the
Committee of the Whole, and the proceedings subsequent to the 8th of April, 1777,
when the matter was taken up and debated, and the final form determined on
November 15, 1777. Secret Journals of Congress, Vol. III, p. 502. Tit. History
of the Confederation, published at Boston, 182o. Also Preston's "Documents Illustrative of American History," pp. 223, 224.
ï~~54 THE SUPREME COURT OF THE UNITED STATES.
ing of facts by the jury should be final, without re-examination or appeal. The Connecticut captors were awarded but a
fourth of the prize, the residue being divided between the
State of Pennsylvania and the officers and crew of the Convention and the privateer. An appeal was taken to Congress, and referred to the Standing Committee of Appeals,
and, after a full argument, the action of the State Court was
reversed. Judge Ross refused to recognize the authority of
Congress, insisting that the verdict was conclusive, and, in
defiance of a writ in the nature of an injunction, issued by
the Congressional Committee, ordered the sloop and cargo to
be sold and the proceeds to be brought into Court. Thereupon the Committee declared that they were unwilling to
resort to any summary proceedings lest consequences might
ensue dangerous to the peace of the United States, but firmly
declined to hear any other appeals until their authority as a
Court of last resort should be so settled as to give full effect
to their decrees. The matter was taken up by Congress and
a spirited declaration entered upon its Journals in support
of its authority, based upon the argument that a control by
appeal was necessary to secure a just and uniform execution
of the law of nations, and that it would be an absurdity to
trust such matters to the accidental verdicts of juries in the
State Courts. Conferences were held between Congressional
and Legislative Committees with little effect, and so far as
the rights of Olmstead were concerned, the decree in his
favor remained a brutum fulmen until, many years afterwards,
he secured the powerful interposition of the Supreme Court
of the United States.'
'United States v. Judge Peters, 5 Cranch, Ii5 (1809). See post. Also, Papers
in the case of the sloop Active, in the Office of the Clerk of the Supreme
Court of the United States; The Whole Proceedings in the case of Olmstead v.
Rittenhouse, by Richard Peters, Jr., Philadelphia, 1809.
ï~~THE COURT OF APPEALS.
55
CHAPTER V.
ESTABLISHMENT OF THE COURT oP APPEALS IN CASES OF CAPTURE: JUDGES: CASE
oF THE BRIG "SAVANNAH": DECAY OF THE COURT: ANALYSIS OF ITS WORK.
THE Continental Congress had declared that the absolute control by appeal was vested in them "over all
jurisdictions for deciding the legality of captures on
the high seas." But although powerless to enforce their
decree, the members were so deeply impressed by the necessity for some definite action that on the I5th of January,
1780, they resolved "that a Court be established for the trial
of all appeals from the Courts of Admiralty in these United
States, in cases of capture, to consist of three Judges, appointed and commissioned by Congress, either two of whom,
in the absence of the other, were to hold the said Court for
the despatch of business."' The Court was to appoint its
own register: trials were to be had therein according to the
usage of nations and not by jury. The Judges were to hold
their first session at Philadelphia, and afterwards at such
times and places as they should deem most conducive to the
public good, not further eastward than Hartford, Connecticut,
or southward than Williamsburg, Virginia: the salaries were
to be fixed, and in the mean time twelve thousand dollars
were to be advanced to each. A few days later Congress
proceeded to the election of Judges, and selected George
Wythe, of Virginia, William Paca, of Maryland, and Titus
1Journals of Congress, Vol. VI, p. o.
ï~~66 THE SUPREME COURT OF THE UNITED STATES.
Hosmer, of Connecticut. The former declined, and Cyrus
Griffin, of Virginia, was chosen in his stead. Commissions
were issued;1 the Court was styled "The Court of Appeals
in Cases of Capture;" suitable oaths were prescribed; the
method of conducting an appeal was stated, and all appeals
then depending before Congress or the Commissioners of Appeals were referred to the newly erected tribunal, and all
papers relating thereto were transferred from the Secretary of
Congress to the register of the Court.2 The resolution as
adopted, though far in advance of anything that had been
accomplished up to this time, lacked several important provisions which had been inserted in the first draft. Clauses
providing that the Judges should have the powers of a court
of record in fining and imprisoning for contempt and disobedience; that the State Admiralty Courts should execute their
decrees, and that a Marshal should be appointed, were stricken
out. Thus a tribunal of which much was expected was shorn
of necessary and proper powers on the ground that it would
not be wise to confer too high authority upon the Court or
assume too extensive a jurisdiction for Congress, so difficult
was it to overcome the prejudices of statesmen, even in the
light of current events, against liberal grants to the Federal
Government.3 The tenure of the Judges was uncertain, and
on June 25, 1781, an ordinance providing that they should
"hold their commissions during good behavior" was lost.'
The Court occasionally required aid from legislative action.
1 For form of Commission see Journals of Congress, Vol. VI, p. 15.
2Ibid. p. 52.
1 Papers of the Old Congress in the State Department at Washington, 29, 375.
"Ordinance for Establishing," &c., endorsed "December 5, 1779;" a vote of four
States for it and four against, is noted upon it.
SJournals of Congress, Vol. VII, p. 107.
ï~~JUDGES OF THE COURT OF APPEALS.
57
In the case of the Holker an appeal had been entered, but
owing to the indisposition and death of the register the
necessary stipulations had not been entered into within due
time. The Court refused to receive the bonds offered, being
"by strictness of law incapable to interpose." Congress, by
resolution, instructed the Court to receive and hear the appeal
upon notice to the opposing parties and the entry of proper
security.' An effort was also made to bring in an ordinance
for the regulation of the proceedings of the Admiralty Courts
in the States, and to revise and collect into one body the
resolutions of Congress; to establish convenient rules of decision, and to call on the several legislatures to aid the powers
reserved to Congress by the Articles of Confederation, but it
bore no fruit.2
The work of the Court was performed during the first
two years by Messrs. Paca and Griffin, Judge Hosmer having
died in office early in August, 1780. Their decisions, though
few in number, met with the approbation of foreign governments and jurists, and drew from the Count de Vergennes,
at that time Prime Minister of France, an expression of admiration, which he directed the Chevalier de la Luzerne, the
envoy of that nation, to communicate to Mr. Paca.3 In November, 1782, Paca became Governor of Maryland, and resigned his judgeship; and, on December 5th, George Read,
of Delaware, and John Lowell, of Massachusetts, were chosen
to serve with Mr. Griffin, the presidency being given by lot
to Mr. Read.'
It appears from the record that Congress had not resigned
1Journals of Congress, Vol. vii, p. 141.
2Journals of Congress, Vol. vii, p. 120.
$ Sanderson's "Lives of the Signers," Vol. IV, p. 122.
"Journals of Congress, Vol. viii, p. 21.
ï~~58 THE SUPREME COURT OF THE UNITED STATES.
all control over the actions of the Court, for on the 8th of
January, 1784, upon the memorial of one of the agents of
the Prussian ship Miznerva, concerning a decree of the
Court of Appeals, it was resolved that the memorial, with the
papers accompanying it, be referred to the judges to report
to Congress, as speedily as may be, the proceedings, proofs
and judgment in the case. It is not known, however, what
became of this instruction.'
In the same month the case of the brig Susannak was
brought before Congress, upon the representation of the legislature of New Hampshire, touching the extent of the right
of appeal to Congress in cases of capture under their Act of
Assembly, and it was ordered that all proceedings upon the
sentence of the Court of Appeals ought to be stayed.2 The
matter involved an examination of the powers of Congress,
substantially the same as that in the Olmstead case; but
though reported on at great length, and leading to a somewhat acrimonious debate, in the course of which a motion
that it was improper for Congress in any manner to reverse
or control the decisions, judgments or decrees of the Court
of Appeals was lost, the question was not finally settled until
brought before the Supreme Court of the United States, in
the shape of the case of Penhallow v. Doane, which finally
determined the controversy in favor of the action of the
Court in support of Federal power.3 The business of the
Court soon dwindled, and in a letter of December 23, 1784,
the judges informed Congress that all the cases which had
been brought before them had been determined. The ConSJournals of Congress, Vol. IX, p. 16.
SIbid. Vol. IX, pp. 17, 27, 33, 68.
3 Journals of Congress, Vol. IX, p. 69. Penhallow v. Doane, 3 Dallas, 54 (1795).
ï~~CLOSING DA YS OF THE COURT.
59
mittee to which the matter was referred reported that in
their opinion the Judges were still in commission, and that
it would still be necessary for the Court to remain upon its
present establishment, except with respect to salaries, which
should cease, and that in lieu thereof they should receive a
per diem allowance during the time they should be in active
service, including the time spent in necessary traveling. This
led to a remonstrance from Mr. Griffin, but on the 9th of
February, 1786, Congress resolved that though fully impressed
with a sense of the ability, fidelity and attention of the Judges
of the Court of Appeals, yet, as the war was at an end, and
the business of the Court in a great measure done away,
attention to the interests of their constituents made it necessary that the salaries of the Judges should cease.1
About the same time the State Courts began to assume
jurisdiction over appeals, while in Pennsylvania the High
Court of Errors and Appeals was expressly constituted by the
Act of February 28, 1780, to hear appeals from the Supreme
Court, the Register's Court and the Court of Admiralty, and
the Act was conformed to in several cases which did not
reach the Federal Court.2 The labors of the Court of Appeals
in Cases of Capture, however, were not yet at an end. On
the 27th June, 1786, on the report of a committee to whom
were referred several memorials and petitions from persons
claiming vessels in the Admiralty Courts of some of the
' Journals of Congress, Vol. IX, p. 304.
2 Montgomery v. Henry, I Dallas, 49, April, 1780. Talbot v. The owners of Three
Brigs, Ibid. 95, September, 1784. In this case it was contended that an appeal properly
lay to the Federal Court of Appeals, but the decision of John Dickinson, then a
Judge of the High Court of Errors and Appeals, sustained the State jurisdiction.
Purviance v. Angus, Ibid. I8o, September, 1786. All of these were appeals from
the Admiralty Court in Pennsylvania, and proceeded no further.
ï~~60 THE SUPREME COURT OF THE UNITED STATES.
States, praying for hearings and re-hearings before the Court
of Appeals, it was resolved by Congress that the judges be
directed, in every case, to sustain appeals and grant re-hearings or new trials wherever justice and right might require
it. It was also ordered that the Court assemble in the following November, at the City of New York, for the despatch
of such business as might come before it.1 The last entry
in the Journals of Congress relating to the Court was on the
24th of July, 1786, empowering it to hear an appeal against
a decree in the Court of Admiralty of South Carolina, condemning the sloop Chester, in which Alexander Hamilton
appeared for the appellants. The judges met again, however,
in New York, during May, 1787, as appears by several reported cases, and by opinions and decrees delivered at that
time.2 They then proceeded to Philadelphia, where, on the
16th of May they held their last session, and adjourned without day, and the Court, which has been characterized by Professor Jameson, not simply as the predecessor, but as one of
the origins of the Supreme Court of the United States, passed
into history at the very moment when the Federal Convention
was engaged in the lofty task of erecting a far more comprehensive and effective judiciary as a part of the system adopted
by the people of the United States in order to form a more
perfect union, establish justice, insure domestic tranquillity,
provide for the common defence, promote the general welfare
and secure the blessings of liberty to themselves and their
posterity.
1Journals of Congress, Vol. IX, p. 201.
2 Lake v. Hulbert and Chester v. Experiment, 2 Dallas, pp. 40-41 (1787).
ï~~RESULT OF CASES.
61
ANALYSIS OF THE WORK OF THE COURT.
An analysis of the papers, records and proceedings of the
Court of Appeals, which were deposited in the Office of the
Clerk of the Supreme Court of the United States, under the
Act of Congress of May 8, 1792, shows that there were one
hundred and ten prize cases decided by special committees, the
Standing Committee of Appeals in the Continental Congress,
and the Court of Appeals, exclusive of the eight reported by
Dallas.' In forty-five of these the judgments of the State
Courts were reversed; in thirty-nine the judgments were
affirmed; twelve were dismissed, the parties not appearing;
jurisdiction was declined in two; four were settled by the
parties; while the final action in eight is not known, as the
decrees are missing; one was stricken off because the appeal
came too late, and in one the action is doubtful. Twelve
cases came from Pennsylvania, in eight of which the judgments were affirmed, and in three reversed, the remaining
case being settled. Three cases came from New Hampshire,
in all of which the judgments were reversed. Twenty-seven
cases came from Massachusetts, of which fifteen were affirmances, seven reversals, two were settlements, two were dismissals, and in one the result is unknown. Two came from
Virginia, both being reversed. Rhode Island furnished ten,
in two of which the judgments were affirmed, in seven reversed, and one case was dismissed. Georgia supplied but
two, one being affirmed, and in the other the result is unknown. Maryland had one affirmance to three reversals.
1 See list given by Hon. J. C. Bancroft Davis in Pamphlet already quoted, verified by an examination of the papers in the Office of the Clerk of the Supreme
Court of the United States, and 2 Dallas' Reports, I to 42.
ï~~62 THE SUPREME COURT OF THE UNITED STATES.
North Carolina four affirmances and five reversals and two
dismissals. South Carolina, like Georgia, presents one affirmance and one unknown result. Connecticut out of fifteen
cases counts one affirmance, ten reversals, four dismissals and
one unknown result. New Jersey met with better fortune.
the affirmances numbering six, the reversals four, the dismissals two and the unknown results three Delaware furnished
one affirmance and two settlements. New York does not
appear in the list, owing to the fact that during the greater
part of the war the British were in actual occupation of her
only sea-port.
An examination of the records in each case, consisting
of certified copies of the proceedings in the Courts below,
and of depositions and proofs, leads to a general concurrence
with the results reached by the appellate body. It is clear
that the very large number of reversals is almost exclusively
due to the mistaken views taken by the juries of the facts.
In almost every case the verdict was swayed by local considerations and sectional prejudices. Each claimant of a prize
naturally sought the Courts of his native State and there
secured the favorable action of his fellow-citizens in the face
of sometimes overwhelming adverse proof. Captures were
made of friendly vessels, bound on innocent errands, as
in the case of the Thistle, while in that of the Eliz'abeth, the
Wardens of the Old North Meeting-House, in Boston, claimed
that they had been despoiled of one iron spindle, two large
iron clamps and three pounds of sheet-lead intended for the
weather-vane. In another case the redoubtable General Putnam bitterly complains of the loss of a barrel of oysters, and
in another several spinsters of Providence charged that the
enterprising Captain Manly had seized as his prize a lot of
household articles belonging to them. Conflicts, too, arose
ï~~STA TE ADMIRALTY JUDGES.
63
out of joint captures made by vessels fitted out at the expense
of two or more individual States, or of a State vessel and one
cruising under Continental authority. The action of the
Appellate Court seems in most instances to have been guided
by sound sense, impartial justice, skill and experience in
applying the rules of evidence and by a competent knowledge
of prize law. Reversals upon pure questions of law were
very rare, and it is a high tribute to the judicial knowledge,
impartial conduct and correct judgment of Judge Francis
Hopkinson, of the Admiralty Court of Pennsylvania, that out
of forty-nine cases, in which he has reported his decrees, and
the reasons upon which they were based, but nine appeals
were taken, and in eight of these he was sustained.' A similar meed of praise is due to Timothy Pickering, Jr., Judge
of the Maritime Court of Massachusetts, and to John Foster,
Judge in Rhode Island of the Court erected for the Control
of Prize Causes. The valor, enterprise and brilliant successes
of the American Navy are imperishably preserved in the
records of the Court whose career we have traced during a
period which constitutes one of the most dramatic chapters in
the history of the nation.
It has been well observed by a recent writer that it
cannot be doubted that the Court of Appeals in Cases of
Capture, though, as remarked by counsel in the case of
Jennings v. Carson,2 "unpopular in those States which were
attached to trial by jury," had an educative influence in
bringing the people of the United States to consent to a successor. It could hardly be that one hundred and eighteen
1 The Works of Francis Hopkinson, Vol. III. "Judgments in the Admiralty of
Pennsylvania," Philadelphia, 1792. Bee's Admiralty Cases, South Carolina (339-44o).
2Jennings v. Carson, 4 Cranch, 9 (18o7).
ï~~64 THE SUPREME COURT OF THE UNITED STATES.
cases, though all in one restricted branch of judicature, should
be brought by appeal from State Courts to a Federal tribunal
without familiarizing the mind with the complete idea of a
superior judicature, in Federal matters, exercised by Federal
Courts.'
1 Professor J. Franklin Jameson, "Essays in the Constitutional History of the
United States," p. 44, to whose admirable paper, as well as to that of Hon. J. C.
Bancroft Davis, I am deeply indebted, although in every instance I have consulted
the original authorities and reached my own results.
ï~~TRIAL OF FELONIES.
65
CHAPTER VI.
OTHER FEDERAL COURTS: COURTS FOR THE TRIAL OF FELONIES AND PIRACIES:
COURTS FOR THE DETERMINATION'OF CONTROVERSIES BETWEEN THE STATES
AS TO BOUNDARY, TERRITORY AND JURISDICTION: CONTROVERSIES BETWEEN
INDIVIDUALS CLAIMING LANDS UNDER GRANTS OF TWO OR MORE STATES: SUIT
BY AN INDIVIDUAL AGAINST A STATE.
COURTS FOR THE TRIAL OF FELONIES AND PIRACIES.
CLOSELY allied to the Admiralty jurisdiction which we
have just reviewed was the grant to Congress by the
Ninth Article of the Confederation of the sole and exclusive right and power of appointing Courts for- the trial of
piracies and felonies committed on the high seas. This power
was exercised upon the 5th of April, 1781, by the passage of
an Ordinance which, after reciting that it was expedient that
such Courts should be speedily created and offenders brought
to trial, ordained that every person who should commit any
piracy or felony upon the high seas, or should be charged as
accessory to the same, either before or after the fact, should be
proceeded against by grand and petit juries, according to the
course of the common law. No separate Court was established, but the justices of the Supreme or Superior Court of
judicature, and the judge of the Court of Admiralty of the
several and respective States, or any two or more of them,
were designated as being constituted and appointed judges for
hearing and trying such offenders.' In States where there
'Journals of Congress, Vol. VII, p. 65.
ï~~66 THE SUPREME COURT OF THE UNITED STATES.
were several Judges of the Admiralty, the Governors were
directed to commission one of them exclusively to join in
performing. these duties. Process was regulated; the pains
of death, forfeiture of lands, goods and chattels were prescribed as punishments, and the benefit of clergy was denied
whenever the same was taken away for like offences committed upon land. The ordinance was subsequently amended on
March 4th, 1783, but merely in minor particulars.'
COURTS FOR THE TRIAL OF CONTROVERSIES BETWEEN
STATES.
The second important class of cases in which the Continental Congress was called upon to exercise judicial powers,
or, what was in effect the same thing, delegate judicial
authority by erecting courts, was in controversies between
the States as to territory and boundaries, or between individuals claiming lands under grants from different States. These
naturally attracted much attention because of the questions of
sovereignty involved, which had raged with such fierceness as
in some instances to lead to bloodshed, and to conditions of
civil disturbance which threatened to impair the harmony of
the Union. Of such grave importance had the matter become, and so apparent was the necessity for National control,
that in the Ninth Article of Confederation, adopted by Congress on the 15th of November, 1777, which contained a specific enumeration of Federal powers, it was provided that the
United States in Congress assembled should be the last resort
on appeal in all disputes and differences then subsisting, or
that might arise thereafter, between two or more States con
'Journals of Congress, Vol. VIII, p. o09.
ï~~THE WYOMING DISPUTE.
67
cerning boundary, jurisdiction or any other cause whatsoever.
A mode of establishing a Court in each case was specifically
prescribed, and all controversies concerning the private right
of soil claimed under different grants of two or more States
were to be settled, as near as might be, in the same manner.
It is interesting to observe that in the draft of the Articles
of Confederation presented by Dr. Franklin on the 2Ist of
July, 1775, the matter is but lightly touched, the only provision being that the power and duty of Congress should
extend in this particular to "the settling all disputes and
differences between colony and colony about limits, or any
other cause, if such should arise."' It was not until the draft
by John Dickinson appeared on the 12th of July, 1776, that
the matter began to assume the definite form in which it was
finally adopted.2
The change is due to the fact that in October, 1775, the
controversy between Connecticut and Pennsylvania as to the
territory known as Wyoming had proceeded to such extremities as to attract widespread attention. At that time the delegates of the smaller State informed Congress that they had
met those from Pennsylvania, but had been unable to adjust
the disputes between the people of the two colonies on the
waters of the Susquehanna, which had led to actual war, and
asked for a special committee to consider the matter and
report.' John Rutledge, Samuel Chase, Thomas Jefferson,
James Kinsey and Stephen Hopkins were formally appointed,
and, in December, Congress, by resolution, recommended that
1 Franklin's Draft, Article V. History of the Confederation. Secret Journals
of Congress, Vol. I, p. 26, par. 9.
2 Compare Franklin's Draft, Article V, with Dickinson's Article XVIII, and the
Final Article IX, as adopted. Secret Journals, pp. 268, 269, 281, 34o.
a Journals of Congress, Vol. I, pp. 220, 221.
ï~~68 THE SUPREME COURT OF THE UNITED STATES.
the contending parties cease hostilities and every appearance
of force, until the dispute could be legally determined; that
all property taken should be restored to the original owners,
that there should be no interruption to freedom of travel, and
that all prisoners on either side should be permitted to return
to their homes; that as far as possible the former status
should be re-established, and that nothing in these recommendations should prejudice the claims of either party.' The
territory in dispute embraced one degree of latitude and five
degrees of longitude; it contained more than five million
acres of land, rich in hidden and unknown treasures of coal,
iron and oil; sheltering in its bosom that fair and fertile valley made desolate by Indian massacre, and immortalized in
the verse of one of the most gifted of English poets; a region
fascinating to the artist as well as to the historian, beautiful
in scenery, romantic in traditions, a royal heritage, which
Connecticut pioneers, under the terms of a charter, both
boundless and indefinite, had begun to colonize as early as
1753. In 1768 they came into conflict with settlers under
the Penns, who had obtained the Indian title, and who
claimed that they were within the bounds prescribed by the
Charter of Charles II. Then ensued a contest for control,
the erection of stockades, the building of forts, sieges in midwinter, storming parties, taking of prisoners, stratagems, ruses
and surprises, until, in 1771, the Connecticut men were left
in quiet possession. They established a government, laid out
townships, formed settlements, levied and collected taxes,
passed laws for the direction of civil suits and for the punishment of crimes, and maintained themselves in peace and
prosperity, until taken under the law and protection of the
1 Journals of Congress, Vol. I, p. 299.
ï~~THE WYOMING CONTROVERSY.
69
"ancient and high-standing" colony of Connecticut, by the
action of her General Assembly, in erecting all the territory
from the River Delaware to a line fifteen miles west of the
Susquehanna into a town, with all the corporate power of
other towns of the colony, to be called Westmoreland, attaching it to the county of Litchfield. It was this effort on the
part of Connecticut as a State to assert and exercise her
sovereignty over this region that was resisted by Pennsylvania. Under the orders of the Government, Colonel Plunkett,
with a force of about five hundred men, and a train of boats
and stores of ammunition, moved up the North Branch of the
Susquehanna to drive off the Connecticut settlers from the
Wyoming country. About three hundred of these met him
at Naticoke, and repulsed him, with some loss of life on both
sides. It was at this point that Congress intervened in the
manner stated, and recommended to Connecticut that she
should not introduce any new settlers to the disputed lands
until the further order of Congress. Peace once more reigned,
but the Articles of Confederation having been finally ratified
by all the States, and entered upon the Journals in March,
1781, by which Congress was invested with full authority
and jurisdiction over controversies of this nature, Pennsylvania,
through her Supreme Executive Council, presented in the following November a petition respecting the dispute and prayed
a hearing. Congress assigned the fourth Monday in June
following for the appearance of the States, and directed notice
to be given. On the day appointed the States appeared by
their agents. An effort was made by Connecticut to postpone
the proceedings until "after the termination of the present
war," without success, and, after further objections on her
part, which were overruled, the agents of the two States were
directed "to appoint, by joint consent, commissioners or
ï~~70 THE SUPREME COURT OF THE UNITED STATES.
judges, to constitute a Court for hearing and determining
the matter in question." On the 12th of August, 1782, Congress was informed that they had agreed upon the Hon. William Whipple, of New Hampshire, Major-General Nathaniel
Greene, of Rhode Island, Hon. David Brearley and William
Churchill Houston, Esq., of New Jersey, Hon. Cyrus Griffin
and Joseph Jones, Esq., of Virginia, and Hon. John Rutledge,
of South Carolina, any five or more of whom should constitute the Court. Subsequently, Mr. Thomas Nelson, of Virginia, and Mr. Welcome Arnold, of Rhode Island, were substituted for General Greene and Mr. Rutledge. It was agreed
that the Court should sit at Trenton, in the following November. On the i8th of that month, a quorum then being
present, the Court was organized and entered upon its work,
with Messrs. Whipple, Arnold, Brearley, Houston and Griffin Â~
as its members. The judges were sworn before the Hon.
Isaac Smith, one of the justices of the Supreme Court of
New Jersey, and John Neilson, Esq., was appointed Clerk.
The Court was in session for forty-two days. The combat
began by a motion on the part of Connecticut that notice be
given to the tenants in possession of the disputed lands to
appear and defend. It was ruled that this would be outside
of the proper construction of the Ninth Article of Confederation and the terms and design of the commissions issued to
the judges. Other dilatory motions were then made, all of
which were resisted by Pennsylvania, and then evidence both
oral and documentary was offered. Fifteen days were devoted
to the arguments, the chief one in behalf of Pennsylvania
being made by James Wilson, consuming four days, and in
behalf of Connecticut, by William Samuel Johnson, who spoke
for three days. The titles on both sides were regularly deduced, by which it appeared that Connecticut claimed that
ï~~"THE CONNECTICUT CLAIM."
71
the northern bounds and limits of the Grant to William
Penn interfered with and overran a portion of the western
lands, granted to Connecticut, for the space of one degree of
latitude throughout the whole breadth of Penn's Grant, and
that Penn had notice of the fact at the time of taking out
his patent. Both parties claimed to have extinguished the
Indian titles, and Connecticut showed that her settlers had
located and improved their lands, and were in a condition to
extend their settlements, and had done so under the sanction
of her legislature. Pennsylvania claimed that the Connecticut
settlers were intruders, who had violently thrust themselves
within the undoubted boundaries of Penn's Grant, and that
they had been aided and abetted by their State in defiance of
law and justice; besides this, Connecticut had been silent for
a century as to her rights before asserting them, and was
equitably estopped; the terms of Penn's charter were distinct
and clear, while those of the adverse grant were indistinct
and indefinite. On December 30, 1782, the Court pronounced
the following judgment: "We are unanimously of opinion
that the State of Connecticut has no right to the lands in
controversy. We are also unanimously of opinion that the
jurisdiction and pre-emption of all the territory lying within
the charter boundary of Pennsylvania, and now claimed by
the State of Connecticut, do of right belong to the State of
Pennsylvania." 1
1 The mass of literature relating to the "Connecticut Claims" is very great,
but the result is admirably stated in a paper by the Hon. Henry M. Hoyt, ExGovernor of Pennsylvania, read before the Historical Society of Pennsylvania, November io, 1879, entitled "Brief of a Title in the Seventeen Townships in the
County of Luzerne: A Syllabus of the Controversy between Connecticut and Pennsylvania." I have traced the matter through the Journals of Congress, Vol. VIII,
p. 44, et seq. and the "History of Wyoming," by Charles Miner, Esq., Philadel
ï~~72 THE SUPREME COURT OF THE UNITED STATES.
Fourteen years later it was discovered, from a letter written by the Hon. Cyrus Griffin, a member of the Court, and
then a Federal Judge in the District of Virginia, that it had
been agreed by all the Commissioners before determining the
controversy, that the reasons for the determination should
never be given, and that the minority should concede to the
determination as the unanimous opinion of the Court.' The
decision, which was the only one rendered in controversies
between States, under the Articles of Confederation, was acquiesced in by Connecticut, and is pointed to exultingly by
Bancroft as a shining example of the beneficence of the
authority of the Union in quelling the wild strife between
contending sovereignties. The judgment was approved by
Congress, and constitutes the first settlement of a controversy between States by the decree of a Court established by
the United States.
The owners of the private right of soil under Connecticut felt that they were not concluded by the decision, even
though they did not know at that time that such was the
view of the Court. On the 23d of January, 1784, upon the
report of a Committee, consisting of Thomas Jefferson, Richard Henry Lee and Hugh Williamson, to whom the petition
of Colonel Zebulon Butler and others had been referred, Congress resolved to institute a court for the trial of Butler's title,
who claimed under Connecticut, and who asserted that he was
phia, 1845, a work of profound original research. See also Alexander Johnston's
"History of Connecticut," American Commonwealth Series, pp. 275, 284. See also
131 United States Reports, Appendix xix, by lion. J. C. Bancroft Davis.
1 The letter was first produced upon the trial of Vanhorne's Lessee v. Dorrance, 2 Dallas, p. 304 (1795), tried before Paterson, Judge of the Supreme Court of the
United States, sitting with Peters, Judge, in April, I795. The letter is printed in
full by Governor Hoyt, "Brief of a Title, &c.," p. 46.
ï~~PENNAMITES AND YANKEES.
78
disturbed by others claiming under Pennsylvania,' but proceedings were subsequently suspended until the claimants
should particularize their claims and show affirmatively that
they were entitled to a court, for, as was pointed out, the
trial of private right of soil could only be claimed by those
who made it clear that there was a conflict between grantees
of two or more States.2 In September the resolution instituting the Court was repealed, as Colonel Butler could not
describe with sufficient certainty the tract claimed, nor name
with particularity the private adverse claims under grants
from Pennsylvania. "The Pennamite and Yankee War" then
began. The militia of Pennsylvania was mustered to enforce
the writs of Pennsylvania Courts, the property of the Connecticut men.was destroyed, their boundary lines were obliterated and their rights generally ignored, when crowding into
the distracted region, under the leadership of Ethan Allen,
flushed with his success as the founder of Vermont, came
many Green Mountain Boys, in the hope of establishing a
new State, which they would force Congress and Pennsylvania
to recognize. Affairs soon reached a crisis, in which Colonel
John Franklin was arrested for high treason, upon a warrant
issued by Chief Justice McKean, and the celebrated Timothy
Pickering, once Judge of the Admiralty in Massachusetts,
Quartermaster-General of the Continental Army, and afterwards Secretary of State of the United States, was kidnapped
to secure his release. But Pennsylvania dissipated the clouds
of civil war by a series of Acts dictated by a spirit of justice
and toleration, by which the lands of actual settlers were
1 Journals of Congress, Vol. IX, pp. 30, 31t.
s Journals of Congress, Ibid. p. 57.
s Journals of Congress, Vol. IX, Appendix.
ï~~74 THE SUPREME COURT OF THE UNITED STATES.
confirmed to them, and the district was erected into the
County of Luzerne.
Other "controversies" arose, which reached various stages
of development, although none of them arrived at a formal
decree, but were happily settled by the contending States.
Pennsylvania and Virginia differed as to the famous line
"commonly called Mason and Dixon's line," and the matter
was brought before Congress on the 27th of December, 1779.
That body recommended peace and amity, and in the spirit
of that recommendation the subject was withdrawn from the
passionate debates of statesmen and the learned opinions of
judges, and was consigned to the tender care of the reverend
clergy in Virginia and learned college professors in Pennsylvania, aided by laymen who knew little of the.exciting frays
of politics. After some correspondence, which grew out of an
agreement entered into at Baltimore, the Rev. James Madison,
the Rev. Robert Andrews, Mr. John Page and Mr. Thomas
Lewis, on the one side, and Dr. John Ewing, David Rittenhouse, John Lukens and Thomas Hutchins, on the other, were
appointed Commissioners, and on the 23d of August, 1784,
reported that the line had been established and that the Ohio
River had been reached.'
New Jersey and Virginia also had their differences respecting a tract of land called Indiana in the territory Northwest of the Ohio, but the affair was settled by the deed of
cession presented to Congress by Virginia on the ist of March,
1784, and accepted by that body. No Court was ever convened,
and a motion to commit a petition presented by Colonel George
Morgan, agent for New Jersey, praying for a hearing, was lost.2
" 131 United States Reports, Appendix, liii, liv.
*Journals of Congress, Vol. IX, p. 45.
ï~~NEW YORK v. MASSACHUSETTS.
75
Massachusetts and New York appeared at the bar of
Congress upon the 3d of June, 1784, upon a petition presented
by the legislature of the first-named State praying for the
appointment of a Federal Court to adjudicate a claim made by
the latter to land lying between the rivers Merrimac and
Charles.' A day was fixed and notice given. Massachusetts
appeared by John Lowell and James Sullivan; New York by
James Duane, John Jay, Robert R. Livingston, Egbert Benson
and Walter Livingston, all of whom presented their credentials.2 They were directed by Congress to appoint by joint
consent commissioners or judges, and after some delay they
agreed upon Robert Hanson Harrison and Thomas Johnson,
of Maryland; John Rutledge, of South Carolina; George
Wythe, William Grayson and James Monroe, of Virginia;
George Read, of Delaware, and Isaac Smith and William Paterson, of New Jersey, any five of whom were to constitute a
quorum, and Congress was empowered to fill all vacancies in
case of refusals to serve. Harrison, Rutledge and Grayson
declined, and their places were taken by John Sitgreaves and
Samuel Johnson, both of North Carolina, and William Fleming, of Virginia. The City of Williamsburg was designated as
the place for the meeting of the Court. Months rolled away
without action, and finally Congress was petitioned to require
the attendance of a quorum and to fix a day certain. But
by a belated entry on the 8th of October, 1787, it appeared
that the controversy had been settled by the action of the
States themselves as far back as the previous December,
whereupon the commissions of the Judges were revoked and
all proceedings stayed.3
1 Journals of Congress, Vol. IX, p. 221. 2 Ibid. Vol. X, pp. 9-15.
3Ibid. Vol. X, p. 254; Ibid. Vol. XI, p. 58.
ï~~76 THE SUPREME COURT OF THE UNITED STATES.
South Carolina and Georgia contended as to their jurisdictions upon the upper waters of the Savannah River at the
confluence of the Tugaloo and Keowee, and on the 4th of
September, 1786, John Kean, Charles Pinckney and John Bull
appeared as agents for South Carolina, and William Houstoun,
George Walton and William Few for Georgia. The case is
especially interesting because it presents the only instance of
inability on the part of the State agents to agree upon the
composition of a Court, and a consequent reference to Congress to strike a Court in the manner provided for in the
Ninth Article of Confederation.' Three persons were named
by Congress from each of the thirteen States, and from this
list the agents of each party alternately struck one, until the
number was reduced to thirteen; nine were then drawn by lot
from a box in the presence of Congress. Alexander Contee
Hanson, James Madison, Robert Goldsborough, James Duane,
Philemon Dickinson, John Dickinson, Thomas McKean, Egbert
Benson and William Pynchon were chosen. New York City
was selected as the place of meeting, but no record exists to
show that the Court ever convened. The States settled their
differences by a compact signed on the 28th of April, 1787,
several articles of which were subsequently brought before the
Supreme Court of the United States.2
A triangular contest was waged between New Hampshire
and Vermont, New York and Vermont, and Massachusetts
and Vermont, for the control of the region lying between
Lake Champlain and the Connecticut River, which had
been conveyed by Wentworth, the only royal governor in
New England, under the seal of New Hampshire, and betJournals of Congress, Vol. XI, pp. 157-159.
2 South Carolina v. Georgia, 93 U. S. Rep. pp. 5-6 (1876).
ï~~THE NE W HAMPSHIRE GRANTS.
77
came known as the New Hampshire Grants. French, Dutch
and English titles conflicted. In 1750 France, who had
control of the Lake, sought to establish herself in the
Green Mountains; New York pushed her pretensions to the
banks of the Great River, under the proclamation of Cadwallader Colden, then acting as Governor, and appealed to the
great crown lawyers of England for support; while the grantees under New Hampshire obtained a royal mandate that the
governor of New York "do not, upon pain of His Majesty's
highest displeasure, presume to make any grants whatsoever
of any part of the land described, until His Majesty's further
pleasure shall be known concerning the same.''
No attention, however, was paid to this impressive warning. The militia was called on to support Colden's authority:
new grants were made and actions of ejectment continued to
be pressed in the Courts at Albany. To these the Green
Mountain Boys, under the rugged leadership of the hero of
Ticonderoga and Crown Point, gave no heed, but rallied at
Bennington and organized a convention. Here they erected a
sign expressive of their defiance. On the very borders of the
disputed territory, a post twenty-five feet high bore on its top
a huge catamount's skin, stuffed, its teeth displayed towards
the hated province of New York. On the i5th of January,
1777, the name of Vermont was adopted and independence of
New York was declared. A constitution was framed, State
officers were chosen, Thomas Chittenden was elected Governor,
and the new order of affairs was recognized by New Hampshire.
New York, however, was not disposed to relinquish jurisdiction so readily. On the 29th of May, 1779, a letter from
1 Bancroft's "History of the United States," Last Revision, Vol. II, p. 361.
W. H. Carpenter and T. S. Arthur, "History of Vermont," p. 32.
ï~~78 THE SUPREME COURT OF THE UNITED STATES.
Governor George Clinton was presented to Congress, accompanied by other papers touching the controversy, which were
considered in Committee of the Whole. Messrs. Ellsworth,
Edwards, Witherspoon, Atlee and. Root were directed to visit
the inhabitants of the district and ascertain the reasons why
they refused to continue as citizens of the States which had
theretofore exercised jurisdiction, and it was declared that as
Congress were in duty bound, on the one hand, to preserve
inviolate the rights of New York and New Hampshire, so,
on the other, they would always be careful to provide that
the justice due to the States did not interfere with the justice
which might be due to individuals.' By September it appeared that animosities had proceeded so far as to endanger
the internal peace of the United States, and that it was indispensable for Congress to interpose for the restoration of
quiet and good order. As the. people of the New Hampshire
grants denied all jurisdiction on the part of neighboring States,
a doubt arose as to the right of Congress to intervene without additional authority; hence it was resolved and "most earnestly recommended" to the States of New Hampshire, Massachusetts Bay, and New York forthwith to pass laws expressly authorizing Congress to hear and determine all differences between
them relative to their respective boundaries, in the mode prescribed by the Articles of Confederation, and that they also
refer all disputes with the people of the district, and also
authorize the determination of differences between the grantees
of the respective States touching the title to lands. New
York responded by the Act of October 21st, 1779, and New
'Journals of Congress, Vol. V, pp. 177, i81. Carpenter's "History of Vermont,'" Chaps. III and V. E. H. Roberts' "History of New York," Vol. II. pp.
401, 406.
ï~~VERMONT ADMITTED.
79
Hampshire by an Act passed in November. Massachusetts,
having no real interest in the controversy, took no action.
"The people of the district" would not submit, however, but
made various efforts to be admitted as a State. Their attitude,
which converted the question into a political rather than a
judicial matter, was upheld by the secret sympathy of New
Jersey, Rhode Island and Maryland, and rendered the organzation of a Court impossible.' Many futile discussions were
held in Congress, which were participated in by the leading
statesmen of the day, and at one time the conduct of the
"pretended State of Vermont" was severely animadverted upon,
and restitution required to be made to persons who had been
condemned to banishment and confiscation of property. In
1781 Massachusetts assented to the recognition of Vermont,
New Hampshire soon followed, and New York in 1790. On
the 18th of February, 1791, she was admitted to the sisterhood of States, and became under the Constitution a member
of the Federal Union.
SUIT AGAINST A STATE.
A solitary instance occurs of the suit of a private citizen
against a State in the Courts of another State. A foreign
attachment was issued against the Commonwealth of Virginia
in the Court of Common Pleas of Philadelphia County at the
suit of Simon Nathan, and a quantity of clothing, imported
from France, belonging to that State, was attached. The delegates in Congress from Virginia, conceiving this a violation of
'Journals of Congress, Vol. V, pp. 276, 283; Ibid. Vol. VI, pp. 16-128; Ibid.
Vol. VII, pp. 129, 189, 210, 228, 231, 244, 260; "The Federalist," VII; 131 U. S.
Reports, Appendix lii.
ï~~80 THE SUPREME COURT OF THE UNITED STATES.
the law of nations and an affront to the dignity of a sovereign, applied to the Supreme Executive Council of Pennsylvania, by whom the Sheriff was ordered to surrender the
goods. The counsel for the plaintiff, finding that the writ was
suppressed, obtained a rule nisi that the Sheriff should make
a return. The question was elaborately argued, and after
consideration the rule was discharged, on the ground that
every kind of process against a sovereign was a violation of
the law of nations, and that no ministerial officer could be
compelled to serve or return a void writ.'
1Simon Nathan v. Virginia, I Dallas, 77, in Notes.
ï~~NEED OF A CENTRAL POWER.
81,
CHAPTER VII.
DEPECTS OF THE OLD JUDICIAL SYSTEM: INSTANCES OF JUDICIAL FEEBLENESS ON
THE PART OF CONGRESS.
WE have now passed in review the various fields of
controversy over which the Continental Congress,
both before and after the adoption of the Articles
or Confederation, exercised or attempted to exercise judicial
control. They are few in number and limited in extent, presenting features which are but paltry in comparison with that
boundless and richly diversified region developed and cultivated with such assiduity during the past century in the
domain of Constitutional law. Cases of prize and capture,
felonies and piracies on the high seas, controversies between
States, and disputes between individuals claiming lands under
grants from different States constitute but an insignificant
portion of that ample and noble jurisdiction now exercised by
the Courts of the United States. But no one can deny the
value of the work done in those rugged fields, or over-estimate
the importance of the truths gleaned by the statesmen of the
Revolution, in whose awakening minds the conviction gained
strength that in order to preserve harmony, establish uniformity, and enforce obedience there was a paramount necessity of clothing the central government with complete control
of all those questions which the stern logic of events had
proved could not be safely left to the capricious and irregular
action of the States. Conflicting regulations, the numerous
progeny of local prejudices and narrow views, had bred evils
6
ï~~82 THE SUPREME COURT OF THE UNITED STAlES.
which more than once combined to weaken or destroy the
union. Fragmentary grants, imperfect delegations of power,
timid concessions and illiberal restrictions lay like heavy fetters upon the limbs of the nation, impeding freedom of movement and crippling energies which might have been exercised
for the public good. The vital defect in the old Congressional
judicial system-if such it could be called when so, stunted
and misshapen---lay in the fact that it depended entirely upon
State officers to enforce the judgment of the Appellate tribunal when it reversed the decree of a State Court. State
Courts refused to enforce the rights of property acquired
under its decrees, and we have seen how powerless the higher
Court was rendered in the cases of the Susannak and the
sloop Active. The necessity for a competent judicial power
co-extensive with the legislative authority of the Union must
have been sorely felt, and it only requires reference to a few
instances, traceable through the Journals of Congress, in order
to arrive at the conclusion that in very many particulars Congress, both as to its legislative functions and its judicial
authority, lay prostrate at the feet of the States. Although a
priori it would be supposed that the power of punishing infractions of the law of nations would have been vested exclusively in Congress, yet we find that in August, 1779, it was
resolved that the authorities of Pennsylvania be informed that
any prosecution which might be directed should be carried on
at the expense of the United States in the State Courts.'
And in Sweer's case, which occurred in 1778;' counsel were
employed by Congress to prosecute in the State Court one
who was indicted for altering a receipt given by the vendor
'Journals of Congress, Vol. v, p. 367.
21 I Dallas, 41.
ï~~MOCK SOVEREIGNTY.
83
of goods with intent to defraud the United States. It was
urged before Chief Justice McKean, upon a motion in arrest of
judgment, that "at the time of the offense charged the United
States were not a body corporate known in law." Although
this assertion was disregarded by the Court, which declared
that "from the moment of their association the United States
necessarily became a body corporate; for there was no superior
from whom that character could otherwise be derived," yet it
was plain that this mock sovereign was without the power of
self-defence except so far as assistance was extended by the
friendly hand of a State constituting but a single member of
the Union.1
In November, 1781, Congress recommended to the Legislatures of the several States that they should pass laws punishing infractions of the law of nations, and speedily erect
tribunals, or clothe those already existing with power to decide
on what constituted such an offence, and to expressly authorize suits for damages by the parties injured, or for compensation to the United States for damages sustained by them from
an injury done to a foreign power by a citizen.2
The States do not seem to have responded, but, in 1784,
De Longchamp was convicted and sentenced, in the Court of
Oyer and Terminer of Pennsylvania, for committing a violation of the law of nations by insulting M. Marbois, the Secretary of the French Legation, and for committing assault
and battery upon him, the Court declaring that the law of
nations formed a part of the municipal law of Pennsylvania.
This they enforced without the aid of a statute.3 After the
' See also Journals of Congress, Vol. IV, p. 494; Ibid., Vol. V, p. 283. Respublica v. Teischer, I Dallas, 335 (1788).
SSee Journals of Congress, Vol. VII, p. 181.
' Respublica v. De Longchamp, I Dallas, p. II1 (1784).
ï~~84 THE SUPREME COURT OF THE UNITED STATES.
arrest of the offender the Supreme Executive Council of Pennsylvania gave information of the fact to Congress in a letter,
and requested their attention, but nothing seems to have come
of the application, and it was left to the State Court to take
the action stated.1
Congress also proved incapable of enforcing judicially its
interpretation of the crime of treason. Although upon the
24th of June, 1776, after independence had been resolved
upon, the terms allegiance and treason had been defined,
the latter consisting in "levying war against any of the
colonies, or being adherent to the King of Great Britain or
enemies of the said colonies, giving to him or them aid or
comfort," yet it was found to be necessary to recommend to
the legislatures of the colonies that they should pass laws
for punishing persons "provably attainted of open deed by
people of their condition."
Pennsylvania acted promptly, and under her laws we find
several instances of persons convicted in the year 1778.2
Although the power to establish and regulate Post-Offices
throughout the United States had been vested in Congress by
the Articles of Confederation, and an Ordinance of October,
1782, imposed penalties for official misdemeanors, which were
made recoverable by action of debt in the name of the Postmaster-General in the State where the offence was committed,
yet Congress had no power to exact obedience or punish disobedience by pecuniary mulcts or otherwise, but these were solely
dependent upon the laws and tribunals of the several States.
In fine, whenever it became necessary to secure the interests
1 Journals of Congress, Vol. IX, Committee of the States, p. 2.
' Respublica v. Molder, Id. v. Molin, Id. v. Carlisle, Id. v. Roberts, I Dallas, pp.
33-4o.
ï~~INSTANCES OF STATE. SUPREMACY.
85
of the nation, an application to the State Legislatures was
inevitable.
Another example occurs in the appeal, in 1782, of Congress to the States to pass laws to empower Commissioners,
appointed by Congress, to settle the accounts of the Military
Department, to call for witnesses and examine them on oath
touching their accounts.1 It was even necessary to pass a
resolution requesting the States to enact laws to enable the
United States to recover from individuals debts due and effects
belonging to them.2 And, in July, 1784, the Committee of
States, which sat during the recess of Congress, complained
that none of the State Legislatures had made the provisions
requested, by which the interests of the United States had
already suffered. As further loss of time would be injurious,
they again earnestly requested the adoption of measures to
enable the United States to sue for and recover their debts,
effects and property, and such damages as they had sustained."
It is clear, then, that in cases of vital importance to
the nation, the State jurisdictions retained or acquired a power
utterly at variance with the real interests of the nation, except in disputes between the States, questions arising under
grants of land by two or more States, and in cases of prize
and capture, and piracies and felonies on the high seas. The
State Courts, it is true, exercised no jurisdiction in causes
arising from impost or revenue, for none such existed prior
to the present Constitution of the United States. State imposts existed, and the State tribunals entertained the causes
arising out of them. Nor was there under the Confederation
' Journals of Congress, Vol. IV, p. 83; Ibid., Vol. V, p. 296; Ibid; Vol. VII,
p. 298.
2Journals of Congress, Vol. VII, p. 298.
SJournals of Congress, Vol. IX, Committee of the States, p. 18.
ï~~86 THE SUPREME COURT OF THE UNITED STATES.
any tribunal vested with the appellate power which, before
the Revolution, had been exercised by the King in Council
over the decisions of the courts in the respective Colonies.
That was a destiny reserved for the Supreme Court of the
United States.
We are now to see how the various fountains of authority, which we have traced to their original springs, were
directed by the strong hands and wise heads of the Framers
of the Constitution of the United States into the channel of
Federal jurisdiction, until small and feeble rills broaden into
deep and majestic tributaries of that lordly current which
sweeps on through the Union, visiting without inundating
every corner of the Republic, and whose waters are for the
healing of the Nation.
ï~~PART II.
THE ESTABLISHMENT OF THE SUPREME COURT.
CHAPTER VIII.
DEFECTS OF THE ARTICLES OF CONFEDERATION: WANT OF A FEDERAL JUDICATURE: VIEWS OF HAMILTON, MADISON AND OTHERS: THE FEDERAL CONVENTION: PLANS FOR A NATIONAL JUDICIARY: COURSE OF THE DEBATE:
FINAL FORM OF PLAN ADOPTED.
THE want of a Federal Judicature, having cognizance of
all matters of general concern in the last resort, especially those in which foreign nations and their
subjects were interested, was pointed out by Alexander Hamilton as early as May, 1783, as a grievous defect in the Articles of Confederation. He predicted the infringement of
national treaties, the violation of national faith and the disturbance of public tranquillity, by the interference of the local
regulations of particular States militating, directly or indirectly,
against the powers vested in the Union In "The Federalist"
he dwelt upon the want of a judiciary power as a circumstance
which crowned the defects of the Confederation:
"Laws are a dead letter," said he, "without courts to expound and
define their true meaning and operation. The treaties of the United
1Alexander Hamilton, "Resolutions for a General Convention 1783, The Federalist, The Continentalist and other Papers," edited by John C. Hamilton, p. 4.
87
ï~~88 THE SUPREME COURT OF THE UNITED STATES.
States, to have any force at all, must be considered as part of the law
of the land. Their true import, as far as it respects individuals must,
like all other laws, be ascertained by judicial determination. To produce
uniformity in these determinations, they ought to be submitted, in the
last resort, to one Supreme Tribunal. And this tribunal ought to be
instituted under the same authority which forms the treaties themselves."
He adds: "The treaties of the United States, under the present Constitution, are liable to the infractions of thirteen different legislatures, and
as many different Courts of final jurisdiction, acting under the authority
of those legislatures. The faith, the reputation, the peace of the whole
Union, are thus continually at the mercy of the prejudices, the passions
and the interests of every member of which these are composed. Is it
possible that foreign nations can either respect or confide in such a government? Is it possible that the people of America will longer consent
to trust their honor, their happiness, their safety, on so precarious a
foundation."1
James Madison entertained similar views. In a letter
dated the i6th of April, 1787,-a month before the meeting
of the Federal Convention,-addressed to Washington, he says:
"The National supremacy ought also to be extended, as I conceive,
to the judiciary department. If those who are to expound and apply
the laws are connected by their interests and their oaths with the particular States wholly, and not with the Union, the participation of the
Union in the making of the laws may be possibly rendered unavailing.
It seems, at least, necessary that the oaths of the judges should include a
fidelity to the general, as well as local, Constitution; and that an appeal
should lie to some national tribunal in all cases to which foreigners, or
inhabitants of other States, may be parties. The admiralty jurisdiction
seems to fall within the purview of the National Government." 2
The same thoughts were working in the minds of men
1 The Federalist, XXII.
2 Madison's "Debates and Correspondence," Vol. II, p. 714.
ï~~THE VIRGINIA PLA. N.
89
less renowned. William R. Davie wrote to a friend: "Be so
good as to favor me, by the next post, with your opinion
how far the introduction of judicial powers, derived from Congress, would be politic or practicable in the States; " and
Richard Dobbs Spaight expressed a sentiment which was becoining common:
"There is no man of reflection, who has maturely considered what
must and will result from the weakness of our present Federal Government, and the tyrannical and unjust proceedings of most of the State
Governments, if longer persevered in, but must sincerely wish for a strong
and efficient National Government." 1
With such views all four of the gentlemen named entered
the Federal Convention. The main business of that body was
opened on the 29th of May, 1787, by Edmund Randolph, the
Governor of Virginia, who had been selected by his colleagues,
on account of his high position, distinguished talents and skill
as a public speaker, to present a series of fifteen resolutions,
embodying in a concrete form, for the convenience of modification and discussion, those leading ideas of reform proposed
as the basis of an efficient Constitutional system. These resolutions were the result of a consultation among Washington,
George Mason, Randolph, Dr. McClurg, Madison, George
Wythe and John Blair, the two latter being then Judges of
the Supreme Court of Appeals of Virginia. The clause relating to the judiciary provided:
"That a National judiciary be established; to consist of one or more
supreme tribunals, and of inferior tribunals; to be chosen by the National
1 Letter of Davie to Iredell, and of Spaight to Iredell. McRee's "Life of Iredell," Vol. II, pp. 161-168.
ï~~90 THE SUPREME COURT OF THE UNITED STATES.
Legislature; to hold their offices during good behavior, and to receive
punctually, at stated times, fixed compensation for their services, in
which no increase or diminution shall be made so as to affect the persons actually in office at the time of such increase or diminution. That
the jurisdiction of the inferior tribunals shall be to hear and determine,
in the first instance, and of the supreme tribunal, in the dernier resort,
all piracies and felonies on the high seas; captures from an enemy; cases
in which foreigners, or citizens of other States, applying to such jurisdictions, may be interested; or which respect the collection of the
National revenue, impeachment of any National officers, and questions
which may involve the National peace and harmony." 1
The foregoing constituted a part of "the Virginia Plan."
The plan presented by Mr. Paterson, known as "the
New Jersey Plan," differed in some important particulars. It
provided for but one Court, which was to be Supreme. No
inferior tribunals were mentioned. The judges were to be
appointed by the Executive, and the Judiciary so established
were to have authority to hear and determine, in the first
instance, on all impeachments of Federal officers, and by way
of appeal, in the dernier resort, in all cases touching the
rights of ambassadors; in all cases of captures from an enemy; in all cases of piracies and felonies on the high seas;
in all cases in which foreigners might be interested; in the construction of any treaty or treaties, or in questions which might
arise on any of the acts for the regulation of trade or the collection of the Federal revenue; and it was provided that none
of the judiciary should, during the time they remain in office,
be capable of receiving or holding any other office or appointment during the term of service, or for thereafter.2
SThe Madison Papers--Supplement to Elliott's Debates, Vol. V, p. I28.
2 Ibid. p. 192.
ï~~ONE OR SEVERAL TRIBUNALS?
91
Both plans adopted the tenure of good behavior, and a
fixed and immutable compensation.
With these plans before them, the Convention, composed
chiefly of lawyers, with four judges among them, proceeded
to discussion and elaboration. The resolution that a national
judiciary be established passed unanimously, and a further
clause that it should "consist of one supreme tribunal and
of one or more inferior tribunals" passed in the affirmative.
A few days later the words "one or more" were stricken out.
A vigorous debate then ensued upon the method of selecting
the judges. Mr. Wilson, of Pennsylvania, opposed their appointment by the national legislature. Experience, he declared, showed the impropriety of such appointments by numerous bodies. Intrigue, partiality and concealment were the
necessary consequences. A principal reason for unity in the
executive was that officers might be appointed by a single
responsible person. To this John Rutledge replied that he
was by no means disposed to grant so great a power to any
single person. The people would think that we were leaning
too much towards monarchy. Madison preferred a middle
course. He disliked the election of the judges by the Legislature, and was not satisfied with referring the appointment
to the Executive. He hinted that he inclined to a selection
by the Senate. For the time being his views were adopted
without dissent. Rutledge then moved to expunge the clause
relating to inferior tribunals. He was against establishing
any national tribunal except a single supreme one, and he
argued that the State tribunals might and ought to be left,
in all cases, to decide in the first instance, as the right of
appeal to the supreme national tribunal was sufficient to secure the national rights and uniformity of judgments; that it
was making an unnecessary encroachment on the jurisdiction
ï~~92 THE SUPREME COURT OF THE UNITED STATES
of the States, and creating unnecessary obstacles to their adoption of the new system. He was sustained by Roger Sherman, who dwelt chiefly on the expensiveness of having a
new set of Courts, when the existing State Courts would answer the same purpose. Madison replied with great spirit
that,
"Unless inferior tribunals were dispersed throughout the Republic
with final jurisdiction in many cases, appeals would be multiplied to a
most oppressive degree; that, besides, an appeal would not in many
cases be a remedy. What was to be done after improper verdicts, in
State tribunals, obtained under the biased directions of a dependent
judge, or the local prejudices of an undirected jury? To remand the
cause for a new trial would answer no purpose. To order a new trial at
the Supreme Bar would oblige the parties to bring up their witnesses,
though ever so distant from the seat of the Court. An effective judiciary
establishment, commensurate to the legislative authority, was essential
A government without a proper executive and judiciary would be the
mere trunk of a body without arms or legs to act or move."
The same view was taken by Wilson and Dickinson; the
motion of Rutledge, however, prevailed. But Dickinson, in a
powerful speech, returned to the question, and contended that
if there was to be a national legislature, there ought to be a
national judiciary, and pointed out that there was a wide distinction between the absolute establishment of inferior tribunals and the giving of a discretion to the legislature to establish or not to establish them. He therefore moved "that the
national legislature be empowered to institute inferior tribunals." Pierce Butler hotly exclaimed that the people would
not bear such innovations; the States would revolt at such
encroachments. Even supposing such establishments to be
useful, we must not venture on them. The example of Solon
should be followed, who gave the Athenians not the best
ï~~RE VISIONAR Y PO WER.
93o
government he could devise, but the best they would receive.
Then for the first time Rufus King threw himself into the
debate. He scorned the idea of expense, and supported the
views of Madison, Wilson and Dickinson. A great majority
was then obtained for Dickinson's motion.'
A strenuous effort was then made by Wilson to associate
the Judiciary with the Executive in a negative on the acts of
the Legislature. Without some such provision, he argued, the
latter could at any moment sink the Executive into non-existence. Madison adopted this view. The Executive would
stand in need of being controlled as well as supported. An
association of the judges in his revisionary function would
both double the advantage and diminish the danger. It would
also enable the judiciary the better to defend itself against
legislative encroachments; the utility of annexing the wisdom
and weight of the Judiciary to the Executive seemed incontestable. Gerry and Charles Cotesworth Pinckney earnestly
opposed a plan by which the Executive "would be covered by
the sanction and seduced by the sophistry of the Judges." It
would destroy the independence of the judiciary, which ought
to be separate and distinct from the other great departments.
The motion was lost by a vote of eight States to three,
Connecticut, New York and Virginia sustaining the affirmative.2
It was unanimously agreed "that the jurisdiction of the
national judiciary shall extend to cases which respect the collection of the national revenue, impeachments of all national
officers, and questions which involve the national peace and
harmony."'
1 Elliott's Debates, Vol. V, pp. 155-160.
2Ibid. pp. 151, 155, 164, 165-166
$Ibid. p. 188.
ï~~94 THE SUPREME COURT OF THE UNITED STATES.
In this shape the matter was reported by Mr. Gorham as
Chairman of the Committee of the Whole, with the additional
resolution that the national judiciary consist of one supreme
tribunal, the judges of which should be appointed by the
second branch of the national legislature, to hold their offices
during good behavior, and to receive punctually, at stated
times, a fixed compensation for their services, in which no increase or diminution shall be made so as to affect incumbents.
At this stage Alexander Hamilton came forward, and after a
speech of great power, in which he struck a high key in
support of national supremacy, read a sketch, the seventh section of which was in these words:
"The supreme judicial authority to be vested in judges, to hold
their offices during good behavior, with adequate and permanent salaries.
This Court to have original jurisdiction in all causes of capture, and an
appellative jurisdiction in all causes in which the revenues of the General
Government or the citizens of foreign nations are concerned."
The debate was resumed at a later day upon all the essential features involved. Gorham, Sherman and Gouverneur Morris favored the appointment of the judges by the executive with
the advice and consent of the second branch, a mode ratified by
the experience of several of the States for one hundred and forty
years, which was finally agreed to. Morris contended that the
legislature ought to be at liberty to increase salaries as circumstances might require. Madison thought that this would be
highly improper. Whenever an increase was wished by the
judges, or the matter was agitated in the legislature, an undue
complaisance in the former would be felt toward the latter.
If at such a crisis there should be in Court suits to which
1 Elliott's Debates, Vol. V, p. 205.
ï~~INFERIOR COURTS ALLOWED.
9
leading members of the legislature might be parties, the
judges would be in a situation which ought not to be suffered
if it could be prevented. The words "no increase" were then
stricken out. The tenure of good behavior was unanimously
assented to. Once more the debate raged upon the question
of inferior tribunals. Once more Pierce Butler exclaimed that
he could see no necessity for such tribunals; surely the State
Courts might do the business. Luther Martin declared that
they would create jealousies and opposition in the State tribunals and lead to many conflicts of jurisdiction. Gorham
reminded the Convention that a Federal Court already existed
in the States with jurisdiction for the trial of captures, piracies, &c., on the seas. No complaints had ever been made by
the States, or by the courts of the States. Inferior tribunals
were essential to render the authority of the national legislature effectual. Randolph observed that the courts of the States
could not be trusted with the administration of the national
laws. The very objects of jurisdiction would often place the
general and local policy at variance. Sherman and George
Mason urged that such a power might become absolutely
necessary. A vote was then taken, and the resolution empowering the national legislature to appoint inferior tribunals
was agreed to. The trial of impeachments of national officers
was taken from the Federal Courts, and then on the motion
of Madison the Federal jurisdiction was unanimously made
to "extend to all cases arising under the national laws, or involving the national peace and harmony."
Wilson now renewed his motion "that the Supreme national Judiciary should be associated with the Executive in
the revisionary power." Though the proposition had once been
I Elliott's Debates, Vol. V, pp. 331, 332.
ï~~96 THE SUPREME COURT OF THE. UNITED STATES.
defeated, he was so confirmed, by reflection, in the opinion of
its utility, that he thought it incumbent upon him to make
another effort. The judiciary ought to have an opportunity
of remonstrating against projected encroachments on the people as well as on themselves. Although the judges as expositors of the laws would have an opportunity of defending
their constitutional rights, yet the power did not go far
enough. Laws might be unjust, unwise, dangerous, destructive, and yet not be so unconstitutional as to justify the
judges in refusing to give them effect. Let them share in
the revisionary power and they would have an opportunity of
taking notice of those features of a law, and of counteracting
by the weight of their opinion the improper views of the
legislature. The motion was seconded by Madison.
An interesting debate followed, in which great ability was
displayed. Gorham did not see the advantage of employing the
judges in this way. As judges they are not to be presumed
to possess any peculiar knowledge of the mere policy of public measures, nor could it be necessary as a security for their
constitutional rights. The judges of England had no such
protection, and yet their jurisdiction is not invaded. Far
better would it be to let the Executive alone be responsible,
and, at, most, authorize him to call upon the Judges for their
opinions. Ellsworth heartily approved of the motion. The
aid of the Judiciary would give wisdom and firmness to the
Executive. A systematic and accurate knowledge of the laws
was necessary, which the Executive could not be expected
always to possess. The law of nations, also, would frequently
come into question. Of this the judges alone would have
competent information. Madison considered the object of the
motion as of the utmost importance to the meditated Constitution. It would be useful to the Judiciary as a defence
ï~~REVISIONARY POWER AGAIN.
9T
against Legislative encroachments; it would be useful to the
Executive by inspiring confidence and firmness; it would be
useful to the Legislature by preserving a consistency, conciseness, perspicuity and technical propriety in the laws-qualities shamefully wanting in our republican codes. It would
be useful to the community at large, as an additional check
against a pursuit of those unwise and unjust measures which
constituted so great a portion of our calamities. It would
not give too much strength to either the Executive or the
Judiciary. The evil most to be apprehended was that, notwithstanding this co-operation of the two departments, the
Legislature would still be an overmatch for them. All experience had evinced a powerful tendency in the legislature to
absorb all powerinto its vortex. George Mason said he had
always been a friend to this provision. It would give a confidence to the Executive which he would not otherwise have,
and without which the revisionary power would be of little
avail. Gerry had not expected to see this point, which had
undergone full discussion, again revived. The object was to
secure to the Executive, by the revisionary power, protection
against the Legislature. The Executive, who will best know
and be ready to defend his rights, ought alone to have the
defence of them. There were strong objections to the motion.
It was combining and mixing together the legislative and the
other departments. It was establishing an improper coalition
between the executive and judiciary departments. It was
making statesmen of judges, and setting them up as the
guardians of the rights of the people. The representatives of
the people could be trusted. It was making legislators of
the expositors of the laws, which ought never to be done. A
better expedient would be to employ competent persons to
draw bills for the legislature. Caleb Strong was of the same
7
ï~~98 THE SUPREME COURT OF THE UNITED STATES.
opinion. It was a well-established maxim that the power of
making ought to be kept distinct from that of expounding
the laws. The Judges, in exercising the function of expositors, might be influenced by the part they had taken as
legislators. Gouverneur Morris declared that the judges of
England had a great share in legislation. They were consulted in difficult and doubtful cases. They might be, and
some of them were, members of the legislature or of the
privy council. The British Executive was strong in his prerogatives, but with us the interest of our Executive would be
so inconsiderable and transitory, that he would require all the
support he could obtain in resisting legislative encroachments.
Luther Martin considered the association of the Judges with
the Executive as a dangerous innovation, from which no
advantage could be derived. A knowledge of mankind and
of legislative affairs could not be presumed to belong in a
higher degree to the Judges than to the Legislature. As to
the constitutionality of laws that point would come before the
Judges in their official character. Thus they have a most
effective negative on the laws. Join them with the Executive
in the revision and they would have a double negative. The
Judiciary would lose the confidence of the people if they were
employed in the task of remonstrating against popular measures of the legislature. Besides, in what mode and proportion were they to vote in the Council of Revision?
Madison, Mason, Wilson and Morris again took the floor to
answer the objections which had been urged. Gerry and Gorham replied, the former urging that the Executive and the
Judiciary would enter into an offensive and defensive alliance
against the Legislature; the latter, that as the Judges would
outnumber the Executive, the revisionary check would be
thrown entirely out of the Executive hands, and instead of
ï~~REPORT OF COMMITTEE OF DETAIL.
99
enabling him to defend himself, would enable the Judges to
sacrifice him. John Rutledge closed the debate with the sententious declaration that the Judges of all men were most
unfit to be concerned in the revisionary Council. They
ought never to give an opinion on a law until it. came before
them for judicial determination. Besides, it was unnecessary.
The Executive could consult his cabinet, and avail himself of
their information and opinions. The vote was then taken,
and the motion was lost; three States voting in the affirmative, four in the negative, two dividing, and one being
absent.'
The various clauses as voted on were then referred to
the Committee of Detail, consisting of Messrs. Rutledge, Randolph, Gorham, Ellsworth and Wilson, by whose able and
experienced hands the precious and perdurable material furnished by the joint wisdom of the Convention was gradually
fashioned into the bold features and majestic form of the
Constitution, which finally received its most expressive lineaments from the skillful touches of Gouverneur Morris, whose
genius as a literary and political artist rivalled that of Benvenuto Cellini as a sculptor.
The report of the Committee was received on the 6th of
August, three months after the assembling of the Convention.
The power of appointing the Judges of the Supreme Court
was vested in the Senate alone. Whenever a dispute or controversy arose between two or more States respecting jurisdiction on territory and the matter was presented by memorial
to the Senate, the contending States were to be notified to
appear by their agents before the Senate upon a day properly
assigned. By joint consent of the agents, judges or commis
1 Elliott's Debates, Vol. V. pp. 344-349.
ï~~100 THE SUPREME COURT OF THE UNITED STATES.
sioners were to be appointed to constitute a court for the determination of the matter. In the event of disagreement the
Senate was to name three persons from each State, and from
this list each party was to alternately strike one until the
number was reduced to thirteen, and from that number not
less than seven nor more than nine names were to be drawn
by lot, any five of whom should be commissioned as the
judges to finally hear the controversy. If either party neglected to appear, without sufficient cause, or refused to strike,
the Senate was to proceed to nominate three persons from
each State, and the Clerk of the Senate was to strike in behalf of the absent or refusing party. If any of the parties
refused to submit to the authority of such court, or did not
appear to prosecute or defend, the Court was nevertheless to
proceed to judgment, which was to be final and conclusive.'
Controversies respecting land claims under different grants
of two or more States were to be determined in the same
manner. These provisions were taken, almost word for word,
from the Ninth Article of Confederation. The main features
of the report in relation to a national judiciary were as follows:
The Judicial power of the United States was to be vested
in one Supreme Court, and in such inferior courts as should,
when necessary, from time to time, be constituted by the legislature. The tenure was good behavior, the compensation
was not to be diminished during continuance in office. The
jurisdiction of the Supreme Court was to extend to all cases
arising under laws passed by the legislature of the United
States; to all cases affecting ambassadors, other public ministers and consuls; to the trial of impeachments of officers of
SElliott's Debates, Vol. V, pp. 379-380.
2 Ibid.
ï~~JURISDICTION SETTLED.
101
the United States; to all cases of admiralty and maritime jurisdiction; to controversies between two or more States (except
such as should regard territory or jurisdiction); between a
State and citizens of another State; between citizens of different States; and between a State, or the citizens thereof, and
foreign States, citizens or subjects. In cases of impeachments,
cases affecting ambassadors, other public ministers and consuls,
and those in which a State should be a party, this jurisdiction was to be original. In all the other cases before mentioned it was to be appellate, with such exceptions, and under
such regulations as the legislature should make. The legislature might 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 should think
proper, to such inferior courts as it should constitute from
time to time. The trial of all criminal offences (except in
cases of impeachment) was to be in the State where they were
committed, and was to be by jury. Judgment, in cases of
impeachment, was not to extend further than removal from
office and disqualification to hold and enjoy any office of
honor, trust, or profit under the United States. But the party
convicted was to be liable to indictment, trial, judgment and
punishment, according to law. The President was liable to
removal from his office on impeachment by the House of
Representatives and conviction in the Supreme Court, of treason, bribery or corruption. Although he had no share in the
appointment of the Judges of the Supreme Court, who might
be called upon to try him, he had the power to appoint the
judges of the inferioi courts, without the concurrence of the
Senate or House.'
1 See "Report of the Committee of Detail," Elliott's Debates, Vol. V, pp. 377-381.
ï~~102 THE SUPREME COURT OF THE UNITED STATES.
The report was silent upon the question of associating
the Judges with the Executive in a revisionary negative upon
the acts of the Legislature; and although Madison, supported
by Wilson, made a third effort to secure it, it was disposed
of by a remark of Dickinson, that "the Justiciary of Aragon
became by degrees the lawgiver." A proposition of Charles
Pinckney that "Each branch of the Legislature, as well as
the Supreme Executive, shall have authority to require the
opinions of the Supreme Judicial Court upon important questions of law and upon solemn occasions," which was referred
to the Committee, was smothered.
The first assault upon the Report of the Committee, as
presented, was made by its Chairman, John Rutledge, who
moved to strike out the provisions for deciding controversies
between the States, or claimants of land under grants from
different States, which he declared, though necessary under
the Confederation, were rendered useless by the establishment
of a national judiciary. William Samuel Johnson, Roger Sherman and Jonathan Dayton concurred. Williamson and Gorham thought that the provision might be good in cases where
the judiciary were interested, or too closely connected with
the parties. Wilson urged the striking out, which was done
by a vote of eight States in the affirmative, two in the negative, with one absent.
Johnson then suggested that the judicial power ought to
extend to equity as well as law, and moved to insert the
words "both in law and equity," so that the clause should
read "The judicial power of the United States both in law
and equity, shall be vested in one Supreme Court," etc. Read
objected to vesting these powers in the same court; they
ought to be kept separate. The motion prevailed.
John Dickinson then made an effort to secure a provision
ï~~REMOVAL OF THE JUDGES.
103
that the judges might be removed by the Executive on the
application of the Senate and House of Representatives. He
was supported by Gerry. Gouverneur Morris thought it a
contradiction in terms to say that the Judges should hold
their offices during good behavior, and yet be removable without a trial. Besides, it was fundamentally wrong to subject
judges to so arbitrary an authority. Shernman saw no contradiction or impropriety if this were made a part of the constitutional regulation of the Judiciary department. A like provision was contained in the British statutes. Rutledge replied
that if the Supreme Court is to judge between the United
States and particular States, this alone was an insuperable
objection to the motion. Wilson considered such a provision
in the British government as less dangerous than here, the
House of Lords and House of Commons being less likely to
concur on the same occasions. Chief-Justice Holt had successively offended, by his independent conduct, both Houses
of Parliament. Had this happened at the same time, he
would have been ousted. The Judges would be in a bad situation if made to depend on any gust of faction which might
prevail in the two branches of our government. Randolph
opposed the motion as weakening too much the independence
of the Judges. Dickinson did not fear the union of two
Houses, constructed on different principles, for the purpose
of displacing a judge, unless he were guilty of improper conduct. His motion was lost, Connecticut alone voting in the
affirmative.'
Johnson then moved that the judicial power 'should extend
"to all cases arising under the Constitution," and the motion
was unanimously agreed to, it being generally supposed that
SElliott's Debates, Vol. V, p. 481.
ï~~104 THE SUPREME COURT OF THE UNITED STATES.
the jurisdiction given was constructively limited to cases of a
judiciary nature, notwithstanding an expression of Madison
that the right of expounding the Constitution in cases not of
this nature ought not to be given to that department.'
In this way, as Mr. Bancroft has pointed out, Madison's
scheme of restraining unconstitutional legislation of the States
by securing to the legislature of the Union a veto on every
act of State legislation was finally abandoned, and the power
of revising and reversing a clause of a State law that conflicted with the Federal Constitution was confided exclusively
to the Federal judiciary, but only when a case should be
properly brought before the Court.2
Rutledge next added that the jurisdiction should extend
to treaties made, or to be made, under the authority of the
United States; and the proposal was adopted.
The clause, "in cases of impeachment," was postponed,
and that duty was subsequently assigned to the Senate.3
The method of choosing all the Federal judges was then
settled without further debate, and the power of appointment,
without discriminating between the Supreme Court and inferior tribunals, was bestowed upon the Executive, to be exercised with the advice and consent of the Senate. Finally,
upon the proposition of Luther Martin, it was declared:
"This Constitution and the Laws of the United States made
and 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, any1 Elliott's Debates, Vol. V, p. 483.
' George Bancroft's "History of the Formation of the Constitution of the United
States of America," Vol. II, p. 198.
3 Elliott's Debates, Vol. V, p. 483.
ï~~SIGNING THE CONSTITUTION.
105
thing in the Constitution or Laws of any State to the contrary notwithstanding," ' a declaration which has been termed
"the Bill of Rights of the National Judiciary." 2
The Article relating to the Judiciary was now complete.
The metal had been forged and beaten into shape beneath
the repeated blows of vigorous and well-trained minds, and
was now delivered to be polished to the Committee on Style,
consisting of Johnson, Hamilton, Gouverneur Morris, Madison
and King, but the elegance of expression which characterized
the final draft is due to the pen of Morris.
On the 17th of September, 1787, the Convention completed its work, and committed to the people of the United
States, for their approval, that great Charter of Government
now known and honored everywhere as the Constitution of
the United States. The act of signing was performed in that
doubly sanctified chamber of the old State House, in Philadelphia, in which the immortal Congress of July, 1776, had
assembled. But three of the-members present refused to add
their names to "that consecrated roll." The others followed
the example of Franklin and consented to the Constitution
because they expected nothing better, and because they were not
sure that it was not the best that could be had. The opinions
they had of its errors they sacrificed to the public good. In all
their deliberations they had kept steadily in view that which
appeared to them the greatest interest of every true American,
the consolidation of the Union, in which was involved their prosperity, felicity, safety and National existence. This important
consideration, seriously and deeply impressed on the minds
of the members, led each State in the Convention to be less
I Constitution of the United States, Article VI.
2 William Allen Butler, Esq.
ï~~106 THE SUPREME COURT OF THE UNITED STATES.
rigid in points of inferior magnitude than might have been
otherwise expected. And thus the Constitution as presented
was the result of amity and of that mutual deference and
concession which the peculiarity of the political situation rendered indispensable.'
The God of wisdom illuminated the deliberations of that
hour. The labors of that day preserved for all time the
precious fruits of freedom and self-government. Unique in
origin; without a prototype in design; of enduring strength
and of phenomenal success, in the history of political philosophy the Constitution will always stand alone. And not the
least of the wonders wrought by the statesmanship of America was the establishment of a National Judiciary, with a
jurisdiction co-extensive with the limits of the legislative
power, and no longer destitute of the energies which such a
department ought to possess.
1See "Letters accompanying the Constitution and addressed to the Congress by
the Convention." Elliott's Debates, Vol. V, p. 536.
ï~~THE VOICE OF THE PEOPLE.
107
CHAPTER IX.
OBJECTIONS URGED BY THE STATES: ANSWERS THERETO: VIEWS OF THE STATE
JUDICIARIES UPON THE POWER OF THE COURTS TO ANNUL AN ACT OP THE
LEGISLATURE: SCOPE AND PURPOSE OF ARTICLE THIRD IN THE CONSTITUTION.
IT was not to be expected that the proposed instrument
would meet with the full and entire approbation of every
State, and it is an interesting subject of study to mark
the various objections which were urged against the Article
relating to the Judiciary, and the answers which were made
by the publicists and essayists of that time.
An intense struggle took place, the most violent passions
were fully aroused, and fears and prejudices were madly appealed to when arguments failed of which logic or sober
reason could approve. Many of the most famous names in
our history were vehement in their opposition, while many
others were either neutral, or gave to the Constitution but a
lukewarm support. The common fear, and the usual prediction-that the General Government would subvert the State
governments, with a loss of personal freedom-appear in
almost all the "Observations," "Examinations," "Addresses,"
" Letters," " Remarks " and " Objections," which were put
forth as anti-federal arguments.
Elbridge Gerry, in stating the reasons which determined
him in withholding his signature from the completed Constitution, declared that the rights of citizens were rendered insecure by the general power of the legislature "to establish a
tribunal without juries, which will be a Star Chamber as to
ï~~108 THE SUPREME COURT OF THE UNITED STATES
civil cases."' In his letter to the President of the Massachusetts Senate, he expressed a fear "that the judicial department will be oppressive,"' and in a pamphlet, published under
the title of "Observations on the New Constitution and on
the Federal and State Conventions, by a Columbian Patriot,"'
he declared:
"There are no well-defined limits of the Judiciary Powers; they seem
to be left as a boundless ocean that has broken over the chart of the
Supreme Lawgiver, 'Thus far thou shall go and no further,' and as they
cannot be comprehended by the clearest capacity or the most sagacious
mind, it would be an Herculean labor to attempt to describe the dangers
with which they are replete."'
Edmund Randolph, who also refused to affix his name to
the Constitution, in a letter to the Speaker of the House of
Delegates, objected that there was no limitation or definition
of the judicial power.5 George Mason, the remaining member
of the Federal Convention who refused to sign, was more specific and less rhetorical than Gerry:
"The judiciary of the United States," said he, "is so constructed
and extended, as to absorb and destroy the judiciaries of the several States;
thereby rendering law as tedious, intricate and expensive, and justice as
unattainable by a great part of the community as in England; and
enabling the rich to oppress and ruin the poor. 6
1Elliott's Debates, Vol. V, p. 553.
2 "Letter containing the Reasons of the Hon. Elbridge Gerry for not signing
the Federal Constitution." Elliott's Debates, Vol. I, p. 493.
SReprint in "Pamphlets on the Constitution of the United States, published
during its discussion by the People, 1787-1788. Edited by Paul Leicester Ford."
' Upon this Rufus King wrote to John Alsop: "E. G. has come out as a
Columbian Patriot-a pitiful performance. The author sinks daily in public esteem, and his bantling goes unnoticed."
SRandolph's Letter-Elliott's Debates, Vol. I, p. 491.
6 Mason's Letter-Ibid. p. 495.
ï~~VIEWS OF RICHARD HENRY LEE.
109
The most strenuous opposition was made by Richard
Henry Lee, who, in "Letters of the Federal Farmer," stated
and re-stated his lament that the jury trial of the vicinage
had been effectually abolished. Under one General Government alone, he argued, there could be but one judiciary, one
supreme and a proper number of inferior Courts. It would
be totally impracticable in this case to preserve a due administration of justice, and the real benefits of the jury trial of
the vicinage, because there are now Supreme Courts in each
State, and a great number of county and other courts subordinate to each Supreme Court, most of which were itinerant
and held their sessions every year in different parts of their
respective States, counties and districts; notwithstanding this,
citizens must travel considerable distances.to find the place
where justice is administered. Although he was not for bringing justice so near to each man's door as to tempt him to
engage in lawsuits, yet he thought it one of the greatest benefits in a good government that each citizen should find a
Court within a reasonable distance, perhaps, within a few days'
travel of his home; so that without great inconvenience and
enormous expense, he might have the advantages of his witnesses and jury. But it would be impracticable to derive
these advantages from one judiciary-the one Supreme Court
at most could only sit in the centre of the Union, and move
once a year into the centre of the Eastern and Southern extremes of it, and, in this case, each citizen, on an average,
would travel 150 or 200 miles to find this court; that, although inferior Courts might be properly placed in the different counties and districts of the Union, the appellate jurisdiction would be intolerable and expensive.
How little did he foresee the practice of the future; how
little did he dream of the railroad, the steamboat and the tel
ï~~110 THE SUPREME COURT OF THE UNITED STATES.
egraph, the employment of resident counsel, or other agencies of our modern life.
Another objection that he urged, was that powers ever
kept distinct in well balanced governments were improperly
blended in the hands of the same men-"in the judges of
the Supreme Court is lodged the law, the equity, and the fact."
As the judicial powers of the Federal courts were extended to all cases in law and equity, therefore the powers to
determine on the law, in equity, and as to the fact, would all
concentrate in the Supreme Court. The Constitution blended
all these in the same hands-the same judges. The wisdom
of Great Britain had deposited them in different hands-the
Common Law jurisdiction wis distinct from that of the
Chancellor, and the trial by jury was beyond the reach of the
powers of both. It was dangerous indeed to vest in the same
judges power to decide on the law, and also give them general
powers in equity; for if the law restrain them, they need only
step into their shoes of equity and give what judgment their
reason or opinions may dictate. In short, he asserted that in
the Supreme Court as established by the Constitution he saw
not a spark of freedom or a shadow of our own or the
British Common Law.
How little did he foresee the fusion of law and equity,
the adaptation of common law forms to equitable principles, or
the skill with which the same judge could apply without confusion the maxims of both.
Again, he urged as an objection, that the judicial powers
respect internal as well as external objects. Powers to lay
and collect internal taxes, to make bankrupt laws, and to decide, on appeal, questions arising on the internal laws of the
respective States, were of a serious nature, and, taken in connection with others proposed to be lodged in the central Gov
ï~~S OL VITUR AIMB ULAND O.
111
ernment, comprehended all the essential powers of the community, and left nothing of importance to the States. He
objected to the extension of the powers of the Federal judiciary to all cases between a State and the citizens of another
State, between citizens of different States, between a State or
the citizens thereof and foreign States, citizens or subjects.
Actions in all these cases, except against a State government, were then brought and finally determined in the law
courts of the States respectively, and as there were no words
to exclude these Courts of their jurisdiction in these cases,
they would have concurrent jurisdiction with the inferior Federal courts in them. There was no need of opening a new
jurisdiction in these causes, a new scene of expensive lawsuits, of suffering foreigners and citizens of different States
dragging each other many hundred miles into the Federal
Courts. An appeal will lie in all these cases from the State
Courts or Federal inferior courts to the Supreme Judicial Court
of the Union, and a wild conflict of jurisdiction will ensue.
Little did he foresee the ease and convenience of the
system he denounced, and how little fraught with danger was
the doctrine of concurrent jurisdiction.
Once more did he object that trial by jury was secured
only in those few criminal cases to which the Federal laws
would extend, as crimes committed on the high seas, against
the law of nations, treason, and counterfeiting the Federal
securities and coin; but even in these cases the jury trial of
the vicinage was not secured, particularly in the large States;
a citizen might be tried for a crime five hundred miles from
the place where it was committed. In civil cases trial by
jury was not secured at all. It was an important question
whether jury trial was not excluded from the Supreme Court.
In all cases affecting ambassadors, other public ministers and
ï~~112 THE SUPREME COURT OF THE UNITED STATES.
consuls, and in those cases in which a State shall be a party,
the Supreme Court was to have original jurisdiction. In all
the other cases mentioned, the Supreme Court was to have
appellate jurisdiction both as to law and fact, with such exceptions and under such regulations, it was true, as Congress
might make. But by the word "Court" is understood a court
consisting of judges, and the idea of a jury was excluded.
As the Court or the judges were to have jurisdiction on appeals, in all enumerated cases, as to law and fact, it followed
that the judges were to decide the law and try the fact, and
the trial of the fact being assigned to the judges by the Constitution, a jury for trying the fact was excluded. He saw a
gleam of hope, however, in the power of Congress to declare
exceptions and make regulations. He did foresee, however, and
pointed his warning finger to the shadow cast by the coming
decision of Chisholm's Executors v. The State of Georgia:2
"How far it may be proper to admit a foreigner," he wrote, "or the
citizens of another State to bring actions against State governments,
which have failed in performing so many promises made during the war,
is doubtful: How far it may be proper so to humble a State as to oblige
it to answer to an individual in a Court of law, is worthy of consideration; the States are now subject to no such actions; and this new jurisdiction will subject the States and many defendants to actions and processes which were not in contemplation of the parties when the contract
was made; all engagements existing between citizens of different States,
citizens and foreigners, States and foreigners, and States and citizens of
other States were made, the parties contemplating the remedies then
existing in the laws of the States-and the new remedy proposed to be
given in the Federal Courts can be founded on no principle whatever."
1 R. H. Lee, "Letters of a Federal Farmer," in Paul Leicester Ford's " Pamphlets on the Constitution, published during its Discussion by the People," pp. 277-325.
22 Dallas, 419 (1793).
3 Ford's Pamphlets, p. 309.
ï~~PA TRICK HEA'R Y'S OPPOSITION.
113
Substantially the same arguments were urged with tremendous force by Luther Martin, then Attorney-General of
Maryland, in his notable Letter on the Federal Convention,
in which, with remarkable clearness of statement, he dwelt
upon the manner in which trial by jury had been destroyed,
and a vast and varied jurisdiction snatched from the State
Courts.'
Patrick Henry exclaimed:
"The purse is gone; the sword is gone; * * * the independency of
the judges is impaired; * * * I see the prostration of all our rights. In
what a situation will your judges be, when they are sworn to preserve
the Constitution of the State and of the General Government? If there
be a concurrent dispute between them, which will prevail? They cannot
serve two masters struggling for the same object. The laws of Congress
being paramount to those of the States, and to their Constitutions also,
whenever they come in competition, the judges must decide in favor of
the former. This, instead of relieving or aiding me, deprives me of my
only comfort-the independency of the judges. The judiciary are the
sole protection against a tyrannical execution of the laws. But if by this
system we lose our judiciary, and they cannot help us, we must sit down
quietly and be oppressed." 2
In every State similar fears were expressed, and the
same gloomy prophecies were made. The counter-statements
were numerous and cogent. In Virginia the venerable Edmund Pendleton, the President of the State Convention, ripe
in judicial experience, and a member of the highest State
Court whose jurisdiction it was alleged had been invaded and
impaired, replied to the impassioned invective of Patrick
"The Genuine Information, delivered to the Legislature of the State of Maryland, relative to the Proceedings of the General Convention," Elliott's Debates, Vol.
1, p. 344.
2 Elliott's Debates, Vol. III, p. 539.
8
ï~~114 THE SUPREME COURT OF THE UNITED STATES.
Henry in words which have the calmness of a judicial utterance:
" If there were any person in this audience who had not read the
Constitution, or who had not heard what has been said, and should have
been told that the trial by jury was intended to be taken away, he
would be surprised to find, on examination, that there was no exclusion of
it in civil cases, and that it was expressly provided for in criminal cases."
Of those who objected that there was an unlimited power
of appointing inferior Courts, he asked, whether it would have
been proper to limit this power? "Could the framers of the
instrument have extended their ideas to all the necessities
of the United States, and seen every case in which it would
be necessary to have an inferior tribunal?" By the regulations of Congress, they may be accommodated to public convenience and utility. It would have been folly to have fixed
in the Constitution a number that could not have been increased or diminished save by an amendment. As to jurisdiction, assuming that a judiciary is necessary, the power of
that judiciary must be co-extensive with the legislative power,
and reach to all parts of society intended to be governed.
There must be some Court which shall be the central point
of operations; and because all the business cannot be done
in that Court, there must be inferior Courts to carry it on.
Turning to another topic, he said:
"The impossibility of calling a sovereign State before the jurisdiction
of another sovereign State showed the propriety and necessity,of vesting
this tribunal with the decision of controversies to which a State shall be
a party."
As to the jurisdiction given in disputes between citizens
of different States, he put this case:
ï~~JOHN MARSHALL'S DEFENCE.
115
"Suppose a bond given by a citizen of Rhode Island to one of our
citizens. The regulations of that State being unfavorable to the claims
of the other States, if he is obliged to go to Rhode Island to recover it,
he will be compelled to accept payment of one third, or less, of his
money. He cannot sue in the Supreme Court, but he may sue in the
Federal inferior Court; and on judgment to be paid one for ten, he may
get justice by appeal. Is it an eligible situation? Is it just that a man
should run the risk of losing nine-tenths of his claim? Ought he
not to be able to carry it to that Court where unworthy principles do
not prevail?"
Paper money and tender laws, he asserted, may be passed
in other States, in opposition to the Federal principle, and
in restriction of this Constitution, and there will be need of
jurisdiction in the Federal judiciary to stop their pernicious
effects.'
In the same line of calm, but convincing argument, John
Marshall, unconscious of the immortal future before him as
the greatest of all judicial interpreters of the Constitution,
declared:
"Here are tribunals appointed for the decision of controversies which
were before either not at all, or improperly, provided for. * * * Gentlemen
have gone on the idea that the Federal Courts will not determine the
causes which may come before them with the same fairness and impartiality with which other courts decide. What are the reasons for this
supposition? Do they draw them from the manner in which the judges
are chosen, or the tenure of their office? What is it that makes us trust
our judges? Their independence in office and manner of appointment.
Are not the judges of the Federal Court chosen with as much wisdom
as the judges of the State governments? Are they not equally, if not
more independent? If so, shall we not conclude that they will decide
with equal impartiality and candor?" 2
1 Elliott's "Debates in the Virginia Convention," Vol. III, pp. 547-549
2Ibid., 551.
ï~~116 THE SUPREME COURT OF THE UNITED STATES.
Pursuing the Socratic method of closely questioning those
whom he would convince, he asks:
"Is it not necessary that the Federal Courts should have cognizance
of cases arising under the Constitution and the laws of the United
States? What is the service or purpose of a judiciary but to execute the
laws in a peaceable, orderly manner, without shedding blood, or creating
a contest, or availing yourselves of force? If this be the case, where
can its jurisdiction be more necessary than here? To what quarter will
you look for protection from an infringement of the Constitution if you
will not give the power to the judiciary? "
Replying to the argument built on the narrow meaning
of the word "court," he said:
"The exclusion of trial by jury is urged as the prostration of our
rights. Does the word court only mean the judges? Does not the determination of a jury necessarily lead to the judgment of a court? Is there
anything here which gives the judges exclusive jurisdiction of matters of
fact? What is the object of a jury trial? To inform the Court of the
facts. When a Court has cognizance of the facts, does it not follow that
they can make inquiry by a jury? " 1
Madison argued that a Supreme Court was necessary to
secure uniformity in the exposition of treaties. "The establishment of one revisionary superintending power can alone secure
such uniformity." The same principles, he held, applied with
respect to cases affecting ambassadors and foreign ministers,
and also admiralty and maritime cases. As our intercourse with
foreign nations would be affected by decisions of this kind,
they ought to be uniform. This could only be done by giving
the Federal judiciary exclusive jurisdiction. Controversies affecting the interests of the United States ought to be deter
' Elliott's Debates, Vol. III, pp. 551-563.
ï~~NOAH WEBSTER'S DEFENCE.
117
mined by their own judiciary and not be left to partial, local
tribunals
Similar arguments were pressed by James Wilson in
Pennsylvania, and Hamilton and Jay in New York. At the
same time numerous pamphlets appeared from the pens of
those who were not members of the Federal or the State Conventions. Of these the most remarkable were an "Examination into the Leading Principles of the Federal Constitution,"
by Noah Webster, afterwards known as the eminent lexicographer, an "Examination of the Constitution of the United
States," by Tench Coxe, of Pennsylvania, " Remarks on the
Proposed Plan of Federal Government," by Alexander Contee
Hanson, of Maryland-an essay of close reasoning and marvellous eloquence of expression, and "Observations on George
Mason's Objections to the Federal Constitution," by James
Iredell, of North Carolina, who owed his subsequent appointment as an Associate Justice of the Supreme Court of the
United States to the ability displayed in this very paper
which attracted the attention of Washington.2
The insinuation that trials by jury are to be abolished,
Webster denounced as groundless and beyond conception
wicked. It was the circulation of a barefaced falsehood respecting a privilege dear to freemen, and could only proceed
from a depraved heart and the worst intentions. The prediction as a probable event that the Federal courts would absorb
the judiciaries of the States, he declared to be a mere suspicion, without the least foundation, and he dismissed as trifling
all objections based on declarations that the jurisdiction of
1 Elliott's Debates, Vol. III, p. 532.
2All these papers are reprinted by Paul Leicester Ford, in his "Pamphlets
on the Constitution of the United States, Published during its discussion by the
People, 1787, 1788."
ï~~118 THE SUPREME COURT OF THE UNITED STATES.
the Federal courts was not accurately defined or easily understood.
Tench Coxe, who had been a member of the Continental
Congress and the Annapolis Convention, quieted the fears of
those who had been disturbed by the loud outcry that almost
every kind of suit would be brought in the Federal courts to
the utter subversion of the local tribunals, by pointing out
that trials for lands lying in any State between persons residing in such State, for bonds, notes, book debts, contracts,
trespasses, assumptions, and all other matters between two
or more citizens of the same State would be held in the State
Court by juries, and the Federal courts could not interfere in
any manner, except where questions were involved concerning
State laws which infringed the Constitution. He also pointed
out that where the trial was to be had between citizens of
different States, the plaintiff would not be obliged to go into
a Court constituted by the State, with which, or with the
citizens of which, his dispute was, but could appeal to a perfectly disinterested tribunal, from which trial by jury was not
excluded.
Alexander Contee Hanson, the future Chancellor of Maryland, scouted the anti-federal arguments:
"As the rod of Aaron once swallowed up the rods of the Egyptian
magi, so also is it feared that these Federal Courts will, at length,
swallow up the State tribunals. A miracle, in one case, is as necessary
as in the other. But let not the officers of State Courts be overmuch
alarmed! "
James Iredell, then a fast rising lawyer of thirty-five
years of age, addressed himself to the objection made by
Mason, and pertinently asked:
"Are not the State judiciaries left uncontrolled as to the affairs of
ï~~THE FEDERALIST.
119
that State only? In this, as in all other cases where there is a wise
distribution, power is commensurate to its object. In no case but where
the Union is in some measure concerned are the Federal Courts to have
any jurisdiction. The State judiciary will be a satellite waiting upon its
proper planet; that of the Union, like the sun, cherishing and preserving
a whole planetary system."
In seven successive numbers of "The Federalist," Hamilton examined the constitution of the judicial department, in
relation to the tenure of good behavior, the provisions for the
support and responsibility of the judges, the extent of their
powers and jurisdiction, the distribution of their authority,
trial by jury and some miscellaneous questions. On all these
he wrote as one having authority. He had sat in the Convention, had taken part in the debates, had listened to the
objections lodged against every article, and had a memory
stored with the precise information which the task required.
The most brilliant of recent historians has observed that
"it is not easy for us to form a notion of the effect these
papers had on the men who, for the first time, saw them in
the Packets and Gazettes," and adds that "there is no reason
whatever to suppose that the followers of Clinton gave any
more heed to the writings of Publius than did the followers
of Hamilton to the foolery of Brutus and the nonsense of
Centinel.'1 Whether this sentiment be just, or whether it
depreciate the effect produced by the marvelous ability of the
authors of "The Federalist," whose work has been seriously
and reverently called the Bible of Republicanism, the fact
remains that for comprehensiveness of design, strength, clearness and simplicity, the book has no parallel among the writings of men, not even excepting or overlooking those of
1 McMaster's " History of the People of the United States," Vol. I, p. 484.
ï~~120 THE SUPREME COURT OF THE UNITED S TA TES.
Montesquieu and Aristotle. The result was happy, and the
triumph of the Constitution was complete.
As a part of the judicial history of the period, and as a
forerunner of the doctrine of the Supreme Court of the United
States in Marbury v. Madison, decided in 1803,1 it is of interest to trace the growth of the principle that a Court can
declare an act of the Legislature void because of its repugnance to the Constitution of a State. Various claims have
been made to the distinction of priority. Rhode Island claims
it, and recently it has been asserted that the honor belongs
to an argument of Iredell made in a North Carolina case,
argued before, but not decided until after, the Rhode Island
case of Trevetll v. Weeden, in 1786, while an admirer of
Chief-Justice Brearley, of New Jersey, endeavors to show that
the laurels belong to him.2 The truth is, that the palm must
be awarded to Virginia.
In November, 1782, the case of Commonwealth v. Caton
et al. came before the Court of Appeals of that State.3 John
Caton and others had been condemned for treason by the
General Court under an Act of 1776, defining the offence,
which took from the Executive the power to pardon. The
House of Delegates, by resolution of the 18th June, 1782,
granted them a pardon; but the Senate refused to concur.
1 Cranch, 158.
2 See Arnold's "History of Rhode Island," Vol. II, Ch. 24, Trevett v. Weeden;
Cooley's "Constitutional Limitations," 6th Edit., pp. 193-194, note; Hannis Taylor,
"The Origin and Growth of the English Constitution," p. 47; Bayard v. Singleton,
I Martin (N. C.) 42 (1787); Hon. A. M. Waddell's Article on "Judge James Iredell,"
in the "News and Observer," Aug. II, 1890; Hon. Austin Scott, "Address before the
Historical Society of New Brunswick, N. J., on the Federal Convention." See also a
learned and admirable paper entitled, "Relation of the Judiciary to the Constitution,"
by Win. M. Meigs, Esq., of Philadelphia, The American Law Review, XIX, 175 (1885).
S4 Call (Va.) 5-21.
ï~~THE CONSTITUTION AS A LIMIT.
121
When the Attorney-General moved that execution of the
judgment be awarded, the pardon was pleaded, and the General Court adjourned the case to the Court of Appeals, where
the pardon was held to be invalid. Although there was not
a direct conflict between the so-called law and the Constitution, and therefore the remarks of the judges are to be regarded as obiter dzicta, yet the expressions they used are the
first to be found relating to the subject. Judge Wythe earnestly and unequivocally asserted the controlling power of the
judiciary. After adverting to the particular circumstances of
the case, and declaring that, whenever the proper occasion
should occur, he would feel it to be his duty to protect one
branch of the Legislature against the usurpations of the other,
he concluded by saying:
" Nay, more, if the whole legislature-an event to be deprecatedshould attempt to overleap the boundaries prescribed to them by the
people, I, in administering the justice of the country, will meet the
united powers at my seat in this tribunal, and pointing to the Constitution, will say to them, Here is the limit of your authority; hither shall
you go, but no further."
The President of the Court, Mr. Pendleton, expressed no
opinion, but contented himself with remarking:
"But how far this Court in whom the judiciary powers may, in some
sort, be said to be concentrated, shall have power to declare the nullity of a
law passed in its forms by the legislative power, without exercising the
power of that branch contrary to the plain terms of the Constitution, is
indeed a deep, important, and, I will add, tremendous question, the
decision of which might involve consequences to which gentlemen may
not have extended their ideas."
Chancellor Blair and the rest of the judges, so says the
reporter, were of opinion that the Court had the power to de
ï~~122 THE SUPREME COURT OF THE UNITED STATES,
clare any resolution or act of the legislature void if in conflict
with the Constitution.'
The next case in point of date was that of Holmes v.
T'alton and others, arising under the seizure laws. The State
of New Jersey had passed an act providing for trials by juries
consisting of six men. This law was held by Chief Justice
Brearley to be unconstitutional. The date of this decision is
uncertain, but that it was prior to 1785 is fixed by a reference of Gouverneur Morris, who, in an "Address to the Assembly of Pennsylvania against the abolition of the Charter
of the Bank of North America," made in that year, used
this language:
"The boasted omnipotence of legislative authority is but a jingle of
words. In the literal meaning, it is impious. And whatever interpretation lawyers may give, freemen must feel it to be absurd and unconstitutional. Absurd, because laws cannot alter the nature of things; unconstitutional, because the Constitution is no more if it can be changed by
the legislature. A law was once passed in New Jersey which the jtdges
pronounced to be unconstitutional, and therefore void. Such power in
judges is dangerous; but unless it somewhere exists the time employed
in framing a Bill of Rights and Form of Government was merely thrown
away."
'See also Rives' "Life of Madison," Vol. II, pp. 262 et seq.
' Jared Sparks' "Life of Gouverneur Morris," Vol. III, p. 438. There is also a
reference to this decision of Brearley in somewhat indistinct terms in the opinion of Kirkpatrick, C. J., in State v. Parkhurst, Appendix to 4 Halstead, p. 444.
For these references I am indebted to Hon. Austin Scott, of New Brunswick,
N. J. Professor Rogers, of the Law School of the University of Michigan, states
that Brearley announced as the opinion of himself and his associates, that the judiciary had the right to pronounce on the constitutionality of laws, in a case before
the Court at a session at Hillsborough, in September, 1780. He does not state his
authority. Introduction to "Constitutional History of the United States as seen in
the Development of American Law," p. lo. Professor McMaster refers to the New
York case of Rutgers v. Waddington, argued by Hamilton in the Mayor's Court of
New York in 1784, but as the decision turned upon general principles, and not upon
ï~~UNCONSTITUTIONAL LAWS VOID.
123
The case of Trevelt v. Weeden came before the Supreme
Court of Rhode Island in 1786. An Act of Assembly imposed
a heavy penalty on any one who should refuse to receive on
the same terms as specie the bills of a bank chartered by the
State, or who in any way should discourage their circulation.
The penalty was made collectable on summary conviction without jury trial. The Court- held the act void on the ground
that jury trial was expressly given by the Colonial Charter,
which then constituted the Constitution of the State. The
Judges were punished by a refusal of the legislature to reelect them at the end of the year, and were supplanted by
more pliant tools by whose assistance the paper money was
forced into circulation, and public and private debts extinguished by means of it.'
The case of Bayard v. Singleton came before the Supreme
Court of North Carolina in November, 1787. An Act had
been passed in 1785 requiring the Court to dismiss on motion
suits brought by persons whose property had been confiscated,
upon a mere affidavit of the defendants that they were purchasers from the commissioners of confiscated property. The
case was argued for the plaintiffs by Iredell, Johnston and W.
K. Davie, and for the defendants by Arthur Moore, then the
Attorney-General, and subsequently Iredell's successor on the
Bench of the Supreme Court of the United States. The
Court held the law void, as destructive of trial by jury, and
a definite conflict between the Act criticized and a fundamental written law, I have
not thought it proper to include it in the text. See McMaster's Hist. People U. S.,
I, 219-220.
Arnold's " History of Rhode Island," Vol. II, chap. 24, p. 525. Cooley's "Constitutional Limitations," 6th Ed., pp. 193-194, note. Judge Cooley states that this was
the first case in which a legislative act was declared void by reason of repugnance to
a State Constitution, and in this he is followed by Mr. Hannis Taylor, "The Origin
and Growth of the English Constitution," p. 47. They are in error.
ï~~124 THE SUPREME COURT OF THE UNITED STATES.
twenty-seven similar cases were swept from the docket.' The
argument of Iredell was a powerful presentation of the question, worked out in an original way, and is one of the most
characteristic of his productions. It appears in substance in
an address to the public, published in August, 1787, and in a
letter addressed to Spaight in the same month.2 Spaight had
complained of the decisions of the judges as a usurpation of
authority; that the State, instead of being governed by the representatives in General Assembly, would be subject to the
will of three individuals, who united in their own persons the
legislative and judiciary powers, which no monarch in Europe
enjoyed, and which would be more despotic than the Roman
Decemvirate, and equally as insufferable. In reply Iredell
confessed that it had ever been his opinion that an act inconsistent with the Constitution was void, and that the judges,
consistently with their duties, could not carry it into effect.
The Constitution was a fundamental law, limiting the powers
of the legislature, and with it every exercise of these
powers must, necessarily, be compared.3
There was no precedent in ancient or modern judicial
history before the cases just reviewed were decided, which warranted a court in asserting such a principle, and as has been
observed by a recent writer, it was difficult for men trained
under the English system of jurisprudence, to conceive the
idea that a mere Court should assume the prerogative of
setting aside a law enacted by the legislature and approved
by the Executive.4
1Ii Martin (N. C.) 42.
2McRee's "Life and Correspondence of James Iredell," Vol. II, pp. 145-168.
3 In 1792 the Supreme Court of South Carolina held that an Act passed by the
Colonial Legislature in 1712 was ipso facto void as being in contravention of Magna
Charta. Bowman v. Middleton. i. Bay p. 252.
4Prof. Rogers, ut supra.
ï~~THE LEGISLATURE AND THE COURTS.
125
Such is the history of the development of the principle,
up to the time when the Federal Convention was held. John
Francis Mercer, one of the Maryland delegates, expressed in
strong terms his disapprobation of the doctrine that the judges,
as expositors of the Constitution, had authority to declare a
law void, and even such a man as John Dickinson, of Delaware, concurred with him, and said "No such power ought to
exist," but the contrary view prevailed with the most able of
the members of the Convention and passed without challenge,
until Thomas Jefferson, in 1788, in "Observations upon the
Constitution drafted for Virginia," while conceding the existence of the doctrine, declared his dislike of it, as it made
the judiciary department paramount, in fact, to the legislature,
"which was never intended and can never be proper." At
the same time Hamilton was maintaining the opposite view in
"The Federalist."
In the same year the legislature of Virginia passed an
act imposing on the judges of the Court of Appeals the duties
of judges of the district courts, which was considered so
clearly inconsistent with those provisions of the Constitution
intended to secure the independence of the judiciary as to call
forth a manifesto from the judges, in which the quesltio vexata
of the legitimate province of the judicial power was met and
firmly and explicitly resolved. The legislature yielded and
repealed the act.
We have now traced the history of Article Third of the
Constitution of the United States in the light of contemporaneous events, and viewed the successive stages of its composition. Its language is familiar to every lawyer and student of
1 Compare Rives' "Life of Madison," Vol. II, p. 262, note, and "The Federalist,"
No. LXXVIII.
ï~~126 THE SUPREME COURT OF THE UNITED STA TES.
the Constitution. Its general scope and purpose are best
stated by Chief Justice Jay, who wrote as follows:1
"It may be asked, what is the precise sense and latitude in which
the words 'to establish justice,' as here used, are to be understood?
The answer to this question will result from the provisions made in the
Constitution on this head. They are specified in the Second Section of the Third Article, where it is ordained that the judicial power
of the United States shall extend to ten descriptions of cases, viz.:
1st. To all cases arising under this Constitution; because the meaning, construction and operation of a compact ought always to be ascertained by all the parties, or by authority derived only from one of them.
2d. To all cases arising under the laws of the United States; because as
such laws, constitutionally made, are obligatory on each State, the measure of obligation and obedience ought not to be decided and fixed by
the party from whom they are due, but by a tribunal deriving authority
from both the parties. 3d. To all cases arising under treaties made by
their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected or
regulated by the local laws or Courts of a part of the nation. 4th. To
all cases affecting Ambassadors or other public Ministers and Consuls;
because, as these are officers of foreign nations, whom this nation is
bound to protect and treat according to the law of nations, cases affecting
them ought only to be cognizable by National authority. 5th. To all
cases of Admiralty and Maritime jurisdiction; because, as the seas are
the joint property of nations, whose rights and privileges relative thereto
are regulated by the law of nations and treaties, such cases necessarily
belong to National jurisdiction. 6th. To controversies to which the
United States shall be a party; because, in cases in which the whole
people are interested, it would not be equal or wise to let any one State
decide and measure out the justice due to others. 7th. To controversies
between two or more States; because domestic tranquillity requires that
the contentions of States should be peaceably terminated by a common
judicatory; and, because in a free country justice ought not to depend on
the will of either of the litigants. 8th. To controversies between a State
1 Chisholm's Exrs. v. The State of Georgia, 2 Dallas, 419 (1793).
ï~~FEDERAL JUDICIAL POWERS.
127
and citizens of another State; because, in case a State (that is, all the
citizens of it) has demands against some citizens of another State, it is
better that she should prosecute their demands in a National Court than
in a Court of the State to which those citizens belong; the danger of
irritation and criminations arising from apprehensions and suspicions of
partiality being thereby obviated. Because, in cases where some citizens
of one State have demands against all the citizens of another State, the
cause of liberty and the rights of men forbid that the latter should be
the sole judges of the justice due to the latter; and true Republican
Government requires that free and equal citizens should have free, fair
and equal justice. 9th. To controversies between citizens of the same
State claiming lands under grants of different States; because, as the
rights of the two States to grant.land are drawn into question, neither
of the two States ought to decide the controversy. ioth. To controversies between a State, or the citizens thereof, and foreign States, citizens
or subjects; because, as every nation is responsible for the conduct of its
citizens towards other nations, all questions touching the justice due to
foreign nations or people ought to be ascertained by and depend on
national authority. Even this cursory view of the judicial powers of the
United States leaves the mind strongly impressed with the importance of
them to the preservation of the tranquillity, the equal sovereignty and the
equal right of the people."
ï~~128 THE SUPREME COURT OF THE UNITED STATES.
CHAPTER X.
THE JUDICIARY AcT OF 1789: DEBATE IN CONGRESS: FINAL PASSAGE OF THE ACT.
THE old Congress of the Confederation, among its last
acts had provided that the First Congress under the
Constitution should convene in the city of New York
on the 4th of March, 1789. On that day but eight members
of the Senate and thirteen of the House of Representatives
appeared in their respective halls and took their seats, and
both Houses adjourned from day to day until the Ist of
April, when, a quorum of the House being present, an organization was effected by the choice of Frederick Augustus
Muhlenberg, of Pennsylvania, as Speaker, and John Beckley
as Clerk, both gentlemen being selected by ballot. It was
not until the 6th of April, however, that a quorum of the
Senate was present, so that this became the natal day of Congress.' On the following morning, while the House was
entering into a discussion of duties on imports, the Senate
preferred to grapple with the question of organizing the Judiciary, and appointed a Committee to bring in a Bill, of which
Ellsworth was Chairman, with Paterson, Maclay, Strong, Lee,
Bassett, Few and Wingate as associates.2 On the I2th of
June, Richard Henry Lee, in behalf of this Committee, reported
a bill "to establish the Judicial Courts of the United States."
1 " Annals of Congress," compiled by Joseph Gales, Sr., Vol. I, p. 16. "History
of Congress," Vol. I, pp. 9-24.
2Annals of Congress, p. 18.
ï~~MA CLA Y'S VIEWS.
129
It is understood that the original draft, which was modified
but little, was prepared chiefly by Ellsworth, with some assistance from Paterson.' It provoked considerable discussion and
occupied the attention of the Senate for about seventeen days.
After "much wrangling about words" it was determined
that there should be district courts. Lee, unable as a Senator of the United States, to divest himself of the views he
had expressed in the "Letters of a Federal Farmer," then
brought forward a motion,-which would have embarrassed the
Constitutional provision had it prevailed,-that the jurisdiction of the Federal Courts should be confined to cases of admiralty and maritime jurisdiction. Grayson, his colleague,
supported him, but was answered by Ellsworth, and the debate
became warm. As the question was about to be put, William
Maclay, of Pennsylvania, a member of the Committee, a sturdy
democrat, and a close adherent to,the language and letter of
the Constitution, arose and observed that the effect of the
motion was to exclude the Federal jurisdiction from each of
the States, except in admiralty and maritime cases. But the
Constitution expressly extended it to all cases, in law and
equity, under the Constitution and laws of the United States;
treaties made, or about to be made, &c. We already had existing treaties, and were about making many laws. These
must be executed by the Federal judiciary. The arguments
used were inapplicable, as no amendments of the Constitution
were under consideration. Inasmuch as the powers of Con' Mr. Flanders in his Life of Ellsworth, "Lives and Times of the Chief Justices,"
Vol. II, p. 159, attributes a share of the honor to William Samuel Johnson, of Connecticut, but this is an error, as Dr. Johnson was not a member of the Committee.
As the original bill is in the handwriting of Ellsworth preserved among the archives
of the Government, it is very clear that though reported by Lee, the laurels belong
to Ellsworth.
9
ï~~180 THE SUPREME COURT OF THE UNITED STATES.
gress extended to the collection of taxes, duties, and imposts;
the naturalization of foreigners, the coinage, punishing counterfeiting of the coin, treason against the United States, &c.,
and no force of construction could bring any of these cases
within the admiralty or maritime jurisdiction, it was clear that
all these cases were most expressly within the province of the
Federal jurisdiction, so that the question resolved itself into
the simple one, Shall we follow the Constitution or not? Lee
sought to parry the effect of this direct reasoning by the
singular argument that the State judges would all be sworn
to support the Constitution; that they must obey their oaths,
and of course execute the Federal laws. To this Maclay replied that exactly the contrary could be looked for; that the
Judges would swear to support the Constitution, that the Constitution placed the judicial power of the Union in one
Supreme Court and such inferior Courts as might be established; and, of course, the State judges, by virtue of their
oaths, would abstain from every judicial act under the Federal
laws, and would refer all such business to the Federal Courts;
that if any matter made cognizable in a Federal Court should
be agitated in a State Court, a plea to the jurisdiction would
immediately be put in, and proceedings would be stayed.'
Lee's motion was then put and rejected.
The number of Judges to be appointed to the Supreme
Court was then discussed. Gray son favored six. Maclay
thought that if the Circuit Courts were established, six were
1 "Sketches of Debate in the First Senate of the United States in 1789-9o-91 by
William Maclay, a Senator from Pennsylvania," (Harrisburg, 1880), pp. 86, 87. This
Journal gives us the only insight into the debates of the First Senate that can be
had, and is a very spirited record, full of characteristic touches, and portraits of the
time from the pen of a conscientious democrat. It is but little known, but is deserving of close study.
ï~~NUMBER OF JUDGES.
131
too few, but that if the provision for Circuit Courts was
struck out, they would be too many. Ellsworth then arose
and made an elaborate argument upon the necessity of a
numerous bench of judges. He enlarged upon the importance
of the causes that would come before them; of the dignity
it was necessary to support, and held up to view the twelve
Judges of England, in the Exchequer Chamber. Maclay retorted that the whole mass of litigation in the Kingdom
came before these judges-the whole judicial business of
eight or nine millions of people, but in America it was
wholly different; the mass of causes would remain with the
State Judges. Those only arising from Federal laws would
come before the Federal Judges, and there would, comparatively, be few, indeed. When they became numerous, it would
be time enough to increase the judges. Grayson repeated
his opinion that numbers were necessary to procure respectable decisions. Maclay replied that the way to secure respectable decisions was to choose eminent characters for
judges-that numbers lessened responsibility, and, unless they
were all eminent, tended to obscure the decisions. The clause
providing that the Supreme Court should consist of a Chief
Justice and five Associates was then passed.'
A debate then arose whether there should be Circuit
Courts or Courts of Nisi prius. The distinction was started
by the learned Dr. Johnson, of Connecticut. Pierce Butler
adopted it and spoke for the greater part of a day. The vote
was in favor of thirteen district courts.
The clause relating to oaths was then considered; Maclay
moved to amend so that all persons conscientiously scrupulous of taking an oath should be permitted to affirm. Great
I Maclay's "Sketches of Debate," p. 88.
ï~~132 THE SUPREME COURT OF THE UNITED STATES.
opposition was manifested. The Quakers were abused by
Ralph Izard of South Carolina. Robert Morris and Maclay
defended them, and the latter " ran Ellsworth and the other
anti-affirmants so hard on the anti-constitutionalism of the
clause, that they at last consented to have a question whether
the clause should not be expunged; and expunged it was."
Maclay then pointed out where Ellsworth in his diction
in the bill had varied from the Constitution. "This bill is a
child of his, and he defends it with the care of a parent, even
with wrath and anger. He kindled, as he always does when it
was meddled with. Lee, however, after some time, joined me.
Although the President, John Adams, showed himself against
us, we carried the amendment." 2
Maclay then attacked a clause by which a defendant was
required, on oath, to disclose his or her knowledge in the
cause. He could not pass in silence such inquisitorial powers.
Extorting evidence was a species of torture, and inconsistent
with the spirit of freedom. No man should be compelled to
give evidence against himself. Paterson moved to strike it
out. Ellsworth defended it, now in chancery, now in common law, and now common law with a chancery side, and
"then threw the common law back all the way to the wager
of law, which he asserted was still in force." Strong rose
and took the other side. Bassett rose; Read rose, and the
rage of speaking caught the Senate. Paterson appealed to
the feudal system, and pointedly denied all of Ellsworth's
positions. The motion to strike out then prevailed.3
A clause was then taken up, "that suits in equity shall
not be sustained in either of the Courts of the United States
in any case where a remedy may be had at law." After a
' Maclay's "Sketches of Debate," p. 89. 2 Ibid., p. 9o. * Ibid., p. 93.
ï~~MA CLA Y'S A TTA CK ON CHANCER Y.
133
long debate, in which all the leading lawyers participated, a
motion to adopt was carried, but not without a violent assault
upon Chancery proceedings by Maclay.
The bill was then taken up on third reading. Ellsworth
had led in its support, backed by Strong, Paterson, Read and
Bassett. At the same moment that Maclay made an entry
in his Journal that he could scarcely account for his dislike
of the bill, and that he really feared it would become the
Gun-powder Plot of the Constitution, Chief-Justice McKean,
of Pennsylvania, James Wilson, Miers Fisher, Richard Peters,
Tench Coxe and other members of the bar approved in writing of its general outlines. Maclay again attacked it, ridiculing the delays of Chancery. John Adams, who was in the
Chair, said that there was an instance of a cause being finished by the present Chancellor in his life-time, to which it
was retorted: One swallow does not make a summer. As a
general result of chancery proceedings, both parties were
ruined. Plum is matched to plum. Where the parties were
poor, the exhausted litigants dropped into ruin about onefourth of the way through.
On the I7th of July the engrossed bill was read and
passed by a vote of fourteen to six. Maclay could not conceal his disappointment and bitter dislike, for he entered in
his Journal:
"I opposed this bill from the beginning. It certainly is a vile law
system, calculated for expense, and with a design to draw by degrees all
law business into the Federal Courts. The Constitution is meant to
swallow all the State Constitutions, by degrees; and this to swallow, by
degrees, all the State judiciaries. This, at least, is the design some gentlemen are aiming at."
In the House of Representatives the bill was supported by
Fisher Ames, Theodore Sedgwick and Egbert Benson, against
ï~~184 THE SUPREME COURT OF THE UNITED STATES.
the assaults of Livermore of New Hampshire, and Jackson
of South Carolina. The former could not conceive why the
system had been devised unless it be to plague mankind.
He saw a foundation laid for discord, civil war and all its
concomitants. To avert these evils he hoped the House
would reject the bill.'
Inveterate prejudice and stubborn pride of State sovereignty, strange terror at the distant adumbration of the
Nation; singular perplexity over what seems to us to be so
clear! Posterity has not approved of these condemnatory
judgments. On the contrary, the merits of the bill have
been loudly applauded, and its distinguished author has been
spoken of in terms of peculiar reverence by the American
bar. One of his eulogists has declared that the whole Federal judicial system-" the whole edifice, organization, jurisdiction and process, was built by him as it now stands." 2
Although this must be regarded as extravagant, yet no one
will deny to Ellsworth the high praise due to the fact that
the judicial structure raised by him has stood the test of
time, and remains to-day, in its essential features, the same
as when it came from the hands of its founder.
The bill was approved by Washington on the 24th of
September, 1789. It provided that the Supreme Court of the
United States should consist of a Chief Justice and five Associate Justices, any four of whom should be a quorum, and
should hold annually at the seat of government two sessions,
commencing on the first Monday of February and the first
Monday of August. The Associate Justices were to rank
according to the date of their commissions, or when the coma Annals of Congress, Vol. I, pp. 784, 785.
'Wharton's "State Trials," p. 41.
ï~~PROVISIONS OF THE JUDICIARY ACT.
135
missions bore date on the same day according to their respective ages.
The Court was empowered to appoint a clerk, and his
oath of office was prescribed. The oath of the Justices of the
Supreme Court was directed to be that they would "administer justice without respect to persons, and do equal right to
the poor and to the rich," and that they would faithfully
and impartially perform all the duties incumbent upon
them, according to the best of their abilities and understanding, agreeably to the Constitution and Laws of the
United States.
It was provided that the Supreme Court should have
exclusive jurisdiction of all controversies of a civil nature
where a State is a party, except between a State and its citizens; and except also between a State and citizens of other
States, or aliens, in which latter case it shall have original,
but not exclusive jurisdiction; and shall have exclusively
all such jurisdiction of suits or proceedings against ambassadors or other public ministers or their domestic servants, as
a court of law can have or exercise consistently with the law
of nations; and original, but not exclusive jurisdiction, of all
suits brought by ambassadors or other public ministers, or in
which a Consul or Vice-Consul shall be a party.
It was expressly provided that the trial of issues in fact
in the Supreme Court, in all actions at law against citizens
of the United States, should be by jury.
The appellate jurisdiction of the Supreme Court from the
Circuit Courts and Courts of the several States was specially
provided for in the famous 25th Section, and power was given
to issue writs of prohibition to the District Courts when proceeding as Courts of Admiralty and maritime jurisdiction, and
writs of mandamus in cases warranted by the principles and
ï~~136 THE SUPREME COURT OF THE UNITED STATES.
usages of law to any Courts appointed or persons holding
office under the authority of the United States.
The Supreme Court was not to issue execution in cases
removed before them by writs of error, but was directed to
send a special mandate to the Circuit Court to award execution thereupon.
The remaining provisions of the Bill related to the division
of the United States into thirteen districts, and three circuits;
the establishment of a District Court in each District, and
provisions for the holding of special District Courts. The
Circuit Courts were to consist of any two Justices of the Supreme Court and the District Judge of such District, any two
of whom were to constitute a quorum, provided that no District Judge should give a vote in any case of appeal from his
own decision, but might assign the reasons in support of it.
The jurisdiction of the District and Circuit Courts were then
regulated and distributed, and special provisions made as to
matters of practice; the entry of special bail; the production
of books and writings; the granting of new trials; the awarding of executions; the finality of decrees; the regulation of
appeals and writs of error; the appointment of Marshals; the
default of his deputies; the regulation of trials in cases punishable by death; the drawing of juries; the mode of proof; the
taking of depositions de bene esse. Finally it was provided
that parties in all Courts of the United States might personally plead and manage their own causes, or by the assistance
of such counsel or attorneys at law as by the rules of the
said Court should be permitted to practice therein. An attorney for the United States was to be appointed in each District, and an Attorney-General for the United States whose
duty it should be to prosecute and conduct all suits in the
Supreme Court in which the United States should be con
ï~~FEATURES OF THE JUDICIARY ACT. 137
cerned, and to give his advice and opinion upon questions of
law when required by the President, or when requested by
the heads of any of the Departments touching any matters
that may concern their Departments
Such were the leading features of the first Judiciary Act
of the United States, and it only remained for the President
to appoint, and the Senate to confirm, judges to fill the positions which had been created in order to organize the judicial
department of the Government.
i See "Laws of the United States of America" (Phila. 1796), Vol. I, pp. 47-75.
ï~~PART III.
THE SUPREME COURT OF THE UNITED STATES.
CHAPTER XI.
ORGANIZATION OF THE COURT: JUDGES FIRST APPOINTED: WASHINGTON'S LETTERS:
BIOGRAPHICAL SKETCHES OF JAY, RUTLEDGE, CUSHING, HARRISON, WILSON,
BILAIR: FIRST SESSION OF THE SUPREME COURT OF THE UNITED STATES:
ADOPTION OF RULES: SKETCH OF IREDELI,: CIRCUIT COURT DUTIES: SUITS
BY CITIZENS AGAINST A STATE: SKETCH OF JOHNSON: HAYBURN'S CASE:
ASSERTIONS OF JUDICIAL INDEPENDENCE: STATE TRIALS.
THE ink was still wet upon the signature of the President to the Judiciary Act when he sent to the Senate
the following names: for Chief Justice, John Jay;
for Associate Justices, John Rutledge, James Wilson, William
Cushing, Robert H. Harrison and John Blair. On the 26th
of September the appointments were confirmed. In the order
of date of commissions as actually issued, Wilson was postponed to Rutledge, Cushing and Harrison.
At the same time Edmund Randolph was appointed
Attorney-General.
The motives which governed Washington in making
these selections are visible in his correspondence. To his
nephew, Bushrod Washington, he wrote:
" My political conduct in nominations, even if I were uninfluenced by
principle, must be exceedingly circumspect and proof against just criticism;
for the eyes of Argus are upon me, and no slip will pass unnoticed that
can be improved into a supposed partiality for friends or relatives."
1 Letter dated 27 July, 1789, Sparks' "Writings of Washington," Vol. X, p. 24.
138
ï~~WASHINGTON'S LETTERS.
139
To Madison, a few days later, he expressed the utmost
solicitude for drawing the first characters of the Union into
the judiciary and his regret that Edmund Pendleton was too
old to be appointed to the Supreme Court. For Randolph in
the character of Attorney-General he declared a preference to
any person with whom he was acquainted of not superior
abilities, from habits of intimacy with him.'
To the Judges themselves he addressed letters, stating
that he considered the judicial system as the chief pillar
upon which our National Government must rest; that he had
thought it his duty to nominate for the high offices in that
department such men as he conceived would give dignity and
lustre to our national character, and he flattered himself that the
love which they had to their country, and a desire to promote
the general happiness, would lead them to a ready acceptance
of the commissions enclosed, which were accompanied by a
copy of the Judiciary Act.2 To Jay he wrote in the warmest
terms, conveying the singular pleasure with which he addressed him as Chief Justice, and confessing that in nominating him he not only acted in conformity to his best
judgment, but did a grateful thing to the good citizens of
the United States. He begged him not to hesitate a moment
in bringing into action the talents, knowledge and integrity
which were so necessary to be exercised at the head of that
department which must be considered as the keystone of our
political fabric.3
We are assured by his son that Jay preferred the Chief
Justiceship to the various offices tendered him, as the sphere
1 Letter, loth August, 1789, Sparks' "Writings of. Washington," Vol. X, p.
26.
2 Letter to the Judges, September 30th, 1789, Ibid. p. 35 -Letter to Jay, 5th October, 1789, Ibid. p. 35.
ï~~140 THE SUPREME COURT OF THE UNITED STA'TES.
in which for the future his talents could be most usefully
exerted?1 At that time he was acting as Secretary for Foreign Affairs. He was but little more than forty-four years
of age, almost six feet in height, of thin but well-formed
person, of colorless complexion, with black, or, as some say,
blue, penetrating eyes, aquiline nose and pointed chin. His
hair was usually drawn back from his forehead, tied behind
and lightly powdered. His manners were gentle and unassuming.2 He was neither a brilliant advocate nor a profoundly learned lawyer nor a master of the technique of
practice. His public duties had been too exacting to permit
him to labor in the forum. He was rather a statesman and
a jurist than a pleader of causes. But his character was "a
jewel in the sacred treasures of national reputation, and when
the spotless ermine of the judicial robe fell upon him, it
touched nothing not as spotless as itself." 3
He was judicious and prudent, rather than emotional,
retired in disposition, dignified, self-controlled, conscientious,
just and wise, remarkable, as his friend, Lindley Murray,
wrote, for strong reasoning powers, comprehensive views, indefatigable industry and uncommon firmness of mind. Judgment, discriminative, penetrating, was the characteristic of
his understanding. If over his other faculties imagination
had presided, the compass of his thought would have been
enlarged, and grace and flexibility been imparted to his mind.4
He wrote at all times with great clearness and force, and occa' William Jay, "Life and Writings of John Jay," New York, 1833, Vol. I, p. 275.
SSullivan's "Letters on Public Characters," p. 59.
3 Webster's Speech in the City of New York, March IO, 1831.
4 William Jay, "Life of John Jay;" Henry Flanders, "Lives and Times of
Chief Justices," Vol. I, p. 429; George Pellew, "John Jay," in "American Statesmen " Series.
ï~~JOHN JA Y.
141
sionally with extreme elegance of expression. Of the gifts of
the orator he had none. His paternal ancestors were French
Huguenots, who had been driven from their native land by
the fury of persecution which followed the revocation of the
Edict of Nantes. In time they found their way to South
Carolina, but subsequently, on account of the climate, thought
it advisable to go to New York. There, on the I2th of December, 1745, John Jay was born, the eighth of a family of
ten children. His mother was of Dutch extraction. After a
preliminary course at a grammar school, and instruction from
a private tutor, he entered Columbia (then King's) College,
and after graduation pursued the study of the law in the
office of Benjamin Kissam. After his admission to the bar
hlie was successful in obtaining practice, but before he had an
opportunity of becoming distinguished in his profession was
drawn into the vortex of politics.
Notwithstanding his youth, he became one of the most
active and influential spirits of the early Revolutionary period. In 1774 he was sent as a delegate to the First Continental Congress, which assembled at the Hall of the Carpenters' Company in Philadelphia, and found himself, with the
single exception of Edward Rutledge, the youngest member
of that august body. With none of the headlong impetuosity
or fiery zeal of Henry, Rutledge and Adams, he prudently
abstained from the vain effort to compete with those splendid
orators; but he won world-wide renown as the author of the
Address to the People of Great Britain,-a paper which drew
forth the encomiums of the Earl of Chatham by its able and
dignified statement of the rights, and glowing portrayal of
the wrongs of the Colonies. He also served as a member of
the Committee of Correspondence, and is supposed to have
written the reply to the Boston Address, in which he opposed
ï~~142 THE SUPREME COURT OF THE UNITED STATES.
the project of non-intercourse. He wrote also the Address to
the People of Canada, and, at the request of his father-in-law,
Governor William Livingston, of New Jersey, an Address to
the Inhabitants of Ireland. He continued to serve as a member of Congress until his recall in May, 1776, to assist in
framing a government for New York, and thus narrowly
missed the immortality which glorifies the names of the
Signers of the Declaration of Independence. In his own State
he prepared a Bill of Rights, and took a leading part in
framing the Constitution; in fact, it is claimed that he was
its author. He acted as a member of the Council of Safety,
and was appointed Chief-Justice of New York in September,
1776,-an office which he held until December, I778, when
he was again sent to Congress, where he presided over its
deliberations as the successor of Henry Laurens. He then
entered upon the wider theatre of diplomacy. He was sent
to Spain to negotiate a loan of two millions of dollars and
the freedom of the Mississippi. With Franklin, Adams and
Laurens he negotiated the Treaty of Peace, and, returning to
New York, was appointed by Congress Secretary of Foreign
Affairs. In October, 1786, he drew up an elaborate report on
the relations between the United States and Great Britain.
Although not a member of the Federal Convention, he took
a leading part in the advocacy of the new government, contributing five numbers to "The Federalist," and a pamphlet and
eloquent Address to the People of the State of New York on
the subject of the Constitution. He favored the national
idea. In 1785 he had written: "It is my first wish to see
the United States assume and merit the character of one
great nation, whose territory is divided into different States
merely for more convenient government, and the more easy
and prompt administration of justice,---just as our several
ï~~
ï~~",',
- "
a' j.
ï~~JOHN R UTLEDGE.
143
States are divided into counties and townships for the like
purposes." Ripe in experience, and thoroughly tried in many
responsible and conspicuous positions, in all of which he had
conducted himself with lofty disinterestedness and unyielding
integrity, his calmness of temperament, accuracy of judgment, unblemished character and sound views upon public
questions commended him to the sagacious choice of Washington as the publicist and jurist best fitted to elevate and
adorn the judiciary of the nation and to preside over the deliberations of its supreme tribunal.
The Associate Justices were also men of national reputation. John Rutledge was the son of Dr. John Rutledge, who,
with his brother Andrew, both natives of Ireland, settled in
Charleston, South Carolina, where, in the year 1739, the future Associate and Chief-Justice of the United States was
born. The historian, Dr. Ramsay, says: "In the friendly
competitions of the States for the comparative merits of their
respective statesmen and orators, while Massachusetts boasts
of her John Adams, Connecticut of her Ellsworth, New York of
her Jay, Pennsylvania of her Wilson, Delaware of her Bayard,
Virginia of her Henry, South Carolina rests her claim on the
talents and eloquence of John Rutledge." After an excellent
classical education, Rutledge entered as a law student in the
Temple, in London, and proceeding barrister, came out to
Charleston, and began the active work of the profession in
1761. In his first cause-an action for breach of promise of
marriage-his eloquence astonished all who heard him. His
business became large, and he at once took rank among the
able members of the bar. With Gadsden and Lynch, he was
sent to the Congress at New York in 1765, and his bold
denunciation of the Stamp Act filled with wonder the members of distant provinces. He returned to the bar, and for
ï~~144 THE SUPREME COURT OF THE UNITED STATES.
ten years devoted himself exclusively to practice. In 1774
he became a member of the First Continental Congress,
and Patrick Henry called him the foremost orator of that
body. He remained in this branch of public service for two
years, and was then elected President and Commander-in-Chief
of his native State. Thenceforth his duties were executive.
The following anecdote is quoted as a sample of the spirit
with which he acted. He wrote to General Moultrie, who
commanded Sullivan's Island, in the harbor of Charleston, this
laconic note: "General Lee wishes you to evacuate the fort.
You will not without an order from me. I would sooner cut
off my hand than write one." In 1778 he became the Governor of the State under the new Constitution, and made
great exertions to repel the British invasions, to defend
Charleston in the year 1779-80, to procure the aid of Congress and of the adjacent States, and to revive the suspended
legislative and judicial powers of the State. His genius for
organizing was superb. In 1782 he was again sent to Congress. The next year he was appointed Minister Plenipotentiary to Holland, but declined the office. He was then elected
a Judge of the Court of Chancery in his own State, and his
duties, from this time forth, were almost exclusively judicial.
His legal learning is said to have been great. He was one
of the most active of the Southern members of the Federal
Convention, and exerted himself strenuously to induce his
countrymen to ratify the Constitution. These services constituted his brief of title to the confidence which led Washington to place his name next to Jay's in the list of appointments to the Federal judiciary.
William Cushing, who was the first representative of
New England upon the bench of the Supreme Court was a
man of good stature, erect, graceful, and dignified, of fair com
ï~~h
ï~~
ï~~
ï~~t
1
1
\ I
\\
ï~~CUSHING AND HARRISON.
1145
plexion, blue eyes, and enormous nose; in dress adhering to the
style of the Revolution, wearing a three-cornered hat, wig, and
small clothes, with buckles in his shoes, a gentleman of the old
school, affable and courteous; in politics a Federalist of the
Washington type. He was born at Scituate, in Massachusetts, on the ist of March, 1732. His father was a member
of the Supreme Court of the State, and was one of the Judges
who presided at the trial of the British soldiers for the massacre of citizens in the streets of Boston on the 5th of March,
1770. The son was a graduate of Harvard, which afterwards
conferred on him the degree of LL.D. He pursued his professional studies under the direction of Jeremiah Gridley, and
at an early age was appointed a judge of probate. He succeeded his father as a Judge of the Supreme Judicial Court,
and, at the outbreak of the Revolution, alone of all those high
in office supported the rights of his country. At town meetings he was an eloquent and invincible speaker. He became
the first Chief Justice of Massachusetts under the Constitution of 1780, an office which he held at the time of his promotion to the Supreme Court of the United States. His
mental characteristics were eminently judicial.
Robert Hanson Harrison, though almost unknown to the
present generation, was a specitl favorite of Washington,
owing to the close and confidential relation he sustained to
his chief during the war of the Revolution. He was born in
Charles County, Maryland, in 1745, and was the son of
Richard Harrison and Dorothy, daughter of Robert Hanson.
He was bred to the law, but at the age of thirty-one preferred
to leave his clientage for the service of his country. On the
i6th of May, 1776, he succeeded Joseph Reed as Secretary to
General Washington, with the rank of Lieutenant-Colonel, and
remained a member of the military family of the Commander10
ï~~146 THE SUPREME COURT OF THE UNITED STATES.
in-Chief until the spring of 1781. He is described in one of
the letters of the General as " sensible, clear, and perfectly
confidential." He was appointed by Congress a member of
the Board of War, but declined the position. He participated
in the Battle of Long Island, the operations near White
Plains, the action at Chatterton's Hill and the Battle of
Brandywine. He also served as a Commissioner for the exchange of prisoners. In March, 1781, he was appointed Chief
Judge of the General Court of Maryland, an office which he
held when, in the balloting for a first Vice-President in the
electoral college, he received the six votes of his native State.
Five days after his confirmation as an Associate Justice of
the Supreme Court of the United States he was unanimously
chosen Chancellor of Maryland. He hesitated for some time
before making a choice between the two positions, but finally
determined in favor of the latter. In a letter, dated 25th
November, 1789, Washington acknowledged the return of the
commission, but finding that one of the reasons that induced
him to decline the appointment was an objection to the Judiciary Act, suggested that such a change in the system was
contemplated as would permit him to pay as much attention
to his private affairs as his present station, and declared that
he thought it proper to return his commission, not for the
sake of urging him to accept it contrary to his interests or
convenience, but with a view of giving him a further opportunity of informing himself as to the nature and probability
of the change alluded to.' In the end he again declined, preferring the State office. He died, however, in the following
April at his seat on the Potomac, near Port Tobacco, in the
1 Letter of Washington to Harrison, Nov. 25th, 1789. Sparks' "Writings of
Washington," Vol. X, p. 52.
ï~~A
ï~~r*
G s /
/:i
ï~~JAMES WILSON.
147
forty-fifth year of his age, and Washington wrote to Lafayette:
"Poor Colonel Harrison, who was appointed one of the Associate Judges of the Supreme Court and declined, is lately
dead."1
James Wilson was in some respects the ablest member of
the first Supreme Court. He stood in the very foremost
rank at the bar, and though he had been called upon on frequent occasions to discharge public duties, yet as they were
all performed in the city of Philadelphia during the sessions
of Congress, and the Federal and State Conventions, he was
able to devote himself to an important and varied practice,
without suffering as others did from a long absence from
home. His attainments in the law were such as to lead the
King of France to commission him as Avocal general de la
Nation Franpaise a Philadelphie, and bestow upon him the
sum of ten thousand livres; while Washington, passing by
the Wythes and Pendletons of Virginia, selected him as the
preceptor of his nephew, Bushrod Washington.' There is evidence that he was thought of by his friends as likely to be
called upon to fill the highest judicial position in the nation.8
'Letter of 3d June, 1790. Sparks' "Writings of Washington," Vol. X, p. 250.
2The writer is in possession of the original of the following note: "Philada.,
March 22, 1782. I promise to pay James Wilson Esq: or order on demand one
hundred guineas, his fee for receiving my nephew, Bushrod Washington, as a Student
of Law in his office. G. Washington." Endorsed: "Received 23 July, 1782, from
his Excellency, General Washington, one hundred guineas in full of the within note.
James Wilson." Endorsed in handwriting of Washington: "Rect. No. 135-James
Wilson Esq., 100oo Guineas, 23 July, 1782."
a In a letter of General Anthony Wayne to Wilson, dated the 20th of May, 1789,
he congratulates him upon the adoption and organization of the Federal Constitution--"a business in which you took so early, so conspicuous and so effectual a
part, and permit me to add that it was to a display of the perfect knowledge you
entertained and the plain elucidation you gave of the component parts of that
system, which caused it to be approved by the Convention of Pennsylvania, it
ï~~148 THE SUPREME COURT OF THE UNITED STATES.
It is not known whether Wilson himself ever raised his
eyes to the first place; certain it is that he did not permit disappointment to sour him. He accepted the position tendered
with great cheerfulness, and, on the 5th of October, appeared
before the Mayor of Philadelphia and voluntarily took the
oath of office prescribed by the Judiciary Act.1 His education
and public experience had fully prepared him for the post.
He was a native of Scotland, aid had studied at Glasgow, St.
Andrew's, and Edinburgh, under Dr. Blair, in Rhetoric, and
in 1763, at the age of twenty-one years, had emigrated to
New York, and in 1766 arrived in Philadelphia. His attainments in the classics were remarkable; the student of his
literary remains cannot fail to be impressed by the evidence
being the first that met, and the first in consequence in the Union and perhaps
its present operation may justly be attributed to the happy turning of the scale
in that State. I therefore hope and trust that I may with propriety venture to
congratulate you upon an appointment, so generally acknowledged, due to your
professional and other merits, i.e., the Chief Justiceship of the United States of
America." The original of this letter, which has never been published, is in the
possession of Thos. H. Montgomery, Esq., of Philadelphia, who received it from
the grand-daughter of Judge Wilson. The latter part of it is characteristic and interesting. After winning Wilson's good will by this not carefully concealed flattery,
he recommends a friend for office, and then asks that Wilson use his best interest
to secure for himself "an appointment in the Southern Department similar to that
which General St. Clair enjoys to the Westward and to which I have some claims
as well from my past unrewarded services, as from the knowledge I have of the
country and of the Creeks, Choctaws and other nations of Indians whom I have
more than once defeated in the field, and afterwards concluded a treaty of peace,
honorable and advantageous to this country and satisfactory to them, which may
be seen among the papers of Congress and those of his Excellency, the President
of the United States of America." Little did Wayne at the time dream that he
would be sent into the West to retrieve the defeats which overwhelmed St. Clair,
and that victory would crown him on the banks of the Miami.
I Original certificate under the hand and seal of the Mayor of Philadelphia,
in the possession of the grand-daughter of Judge Wilson. I have not been able
to find any other record of the manner in which the Chief Justice and remaining
Associates were sworn. It may be that they all pursued a similar course.
ï~~JOHN BLAIR.
149
of his familiarity with the history and philosophy of Greece
and Rome. For a short time he was a tutor in the College
of Philadelphia. He subsequently studied law in the office
of John Dickinson, and after some years of practice at Reading, Carlisle and Annapolis, came to Philadelphia, and was
admitted to the bar of that city in December, 1778. His
political experience was great. An ardent advocate of American Independence, he was for six years a member of Congress, though not continuously, and was concerned in all the
measures of government both during and after the war. He
was one of the signers of the Declaration. In the principles
of finance and constitutional law as it then existed he was
particularly learned. As an orator he held high rank both
as an advocate and a parliamentary debater. He was one of
the ablest and most active of the members of the Federal
Convention, and his speeches in the Convention of Pennsylvania, called to adopt or reject the new Constitution will
compare favorably as luminous expositions of the work he
had helped to perform, with any of the arguments in its
favor to be found reported in Elliott's Debates. He was a
man of large and powerful frame, with an open, honest face,
with bright blue eyes beaming mildly from behind a pair of
heavy silver-rimmed spectacles; his mouth was large and
expressive.
John Blair, the last in commission of the Associate Justices, was of slight frame, but with an astonishing breadth of
brow, particularly between the eyes, which were brown in
color, surmounted by a bald forehead fringed with scanty
locks of red hair, which fell over his ears. His lower lip
protruded in a singular way, like the bill of a bird. He was
born in the City of Williamsburg, Virginia, in 1732, and was
educated at William and Mary College. His family was one
ï~~150 THE SUPREME COURT OF THE UNITED STATES.
of fortune and powerful connections. Bred to the bar, he
studied in the Temple and became a barrister; on his
return he settled in his native city, where he acquired a considerable share of the current legal business. In 1766 he
became a member of the House of Burgesses, and ten years
later was one of the committee of the Convention which drew
up a plan for the government of the State. In 1779 he was
made Chief Justice of the General Court, and on the death of
Judge Nicholas was appointed a member of the High Court
of Chancery, and by virtue of both stations was a Judge of
the first Court of Appeals. He served as a member of the
Federal Convention, as well as of his State Convention; and
though not aggressive in his advocacy, was a firm supporter
of the Constitution. He was regarded by his contemporaries
as an able man, amiable in disposition, blameless and pious,
possessed of great benevolence and goodness of heart.
On the first Monday of February, being the first day of
the month, 1790, in the City of New York, then the seat of
the National Government, Chief Justice Jay and Justices
Cushing and Wilson appeared in the Court room which had
been provided at the Exchange. John McKesson, acted as
clerk. No quorum being present, the Court adjourned to the
following day, when, Justice Blair having arrived, with Edmund
Randolph, the first Attorney-General, the Court was formally
opened in the presence of the Chief Justice and other judges
of the Supreme Court of New York, the Hon. James Duane,
United States District Judge, the Mayor and Recorder of New
York City, the Marshal of the District, the Sheriff and other
officers, and a great number of the gentlemen of the bar.'
1 Gazette of the United States, Feb. 3, 1790, No. Lxxxv. New York letter
dated Feb. 4th, in the Pennsylvania Journal and Weekly Advertiser, February
Io, I790.
ï~~r I
C v
A
ï~~t
t
ï~~OPENING OF THE COURT.
151
The Jury from the District Court was also in attendance,
many members of Congress and a number of respectable citizens.' Proclamation was made, and the commissions of the
Judges and of the Attorney-General were read and published.
Richard Wenman was appointed cryer.2 The next day John
Tucker, Esq., of Boston, was appointed Clerk, and it was
ordered that he reside and keep his Office at the seat of the
National Government, and that he do not practice either as
counsellor or attorney so long as he acted as Clerk?.
After oath had been administered and a bond approved,
the Court adjourned for the day. In the evening the Grand
Jury for the United States, in the district, gave "a very elegant entertainment" in honor of the Court at Francis' Tavern
in Courtlandt Street. "The liberality displayed on this occasion
and the good order and harmony which presided gave particular satisfaction to the respectable guests."'
The next morning Elias Boudinot, of New Jersey, Thomas
Hartley, of Pennsylvania, and Richard Harrison, of New
York, were severally sworn as by law required, and were ad1 Pennsylvania Packet and Daily Advertiser, Feb. 6, 179o.
2 Minutes of the Supreme Court of the United States.
'Minutes of the Supreme Court. Mr. Tucker was selected by Jay; his character is stated to have been most exemplary. William Jay, "Life of John Jay,"
Vol. II, p. 201.
4 Letter dated Feby. Io, 1790o. Gazette of the United States. After dinner the
following toasts were drunk: The President of the United States; The Vice-President;
The National Judiciary; The Senate of the United States; The Speaker and House
of Representatives; The late National Convention; The Constitution of our Country,
-May it Prove the Solid Fabrick of American Liberty, Prosperity and Glory; The
Memory of the Heroes who Fell in Defence of the Liberties of America; His Most
Christian Majesty and the People of France; The Convention of Rhode Island,May their Wisdom and Integrity soon introduce our Stray Sister to her Station in
the Happy National Family of America.
ï~~152 THE SUPREME COURT OF THE UNITED STATES.
mitted as counsellors, their names being enrolled upon parchment.'
After a few moments of quiet consultation, the Judges
adopted Rules, by which it was declared and established that
the Seal of the Court shall be the arms of the United States,
engraved on a piece of steel of the size of a dollar, with
these words in the margin: "The Seal of the Supreme Court
of the United States," and that the seals of the Circuit
Courts shall be the arms of the United States, engraven on
circular pieces of silver of the size of a half dollar, with these
words in the margin, in the upper part: "The Seal of the
Circuit Court," and in the lower part the name of the district
for which it is intended. It was further ordered that it should
be requisite to the admission of attorneys and counselors to
practice in this Court that they shall have been such for
three years past in the Supreme Court of the State to which
they respectively belong, and that their private and professional character shall appear to be " fair." It was also ordered that counselors should not practice as attorneys, nor
attorneys as counselors, and that they should be sworn to
demean themselves as officers of the Court agreeably and according to law, and that they would support the Constitution
of the United States. It was also ordered that all process of
the Court should be in the name of the President of the
United States. Thereupon the Court adjourned to the first
Monday of August following, as fixed by law.'
Not a single litigant had appeared at their bar. The
silence had been unbroken by the voice of counsel in argument. The table was unburdened by the weight of learned
1 Minutes of the Supreme Court. Parchment roll in the Office of the Clerk of
the Supreme Court.
2 Minutes of the Supreme Court.
ï~~JAMES IREDELL.
153
briefs. No papers were on file with the Clerk. Not a single
decision, even in embryo, existed. The Judges were there;
but of business there was none.
Not one of the spectators of that hour, though gifted
with the eagle eyes of prophecy, could have foreseen that out
of that modest assemblage of gentlemen, unheard of and unthought of among the tribunals of the earth, a Court without
a docket, without a record, without a writ, of unknown and
untried powers, and of undetermined jurisdiction, there would
be developed, in the space of a single century, a Court of
which the ancient world could present no model, and the
modern boast no parallel; a Court whose decrees, woven like
threads of gold into the priceless and imperishable fabric of
our Constitutional jurisprudence, would bind in the bonds of
love, liberty and law the members of our great Republic.
Nor could they have foreseen that the tables of Congress
would groan beneath the weight of petitions from all parts of
the country inviting that body to devise some means for the
relief of that overburdened tribunal whose litigants are now
doomed to stand in line for a space of more than three years
before they have a chance to be heard.
James Iredell was appointed on the day upon which the
Court rose in the place of Harrison, his commission being dated
February io, 1790. He was born at Lewes, England, October
5, 1751, (N. S.), and was of Irish extraction. Tradition says
that the family name was originally Ireton, and that they
were collateral descendants of the son-in-law of Cromwell; and
that when at the Restoration the body of the great Protector
was dug up and exposed upon the gibbet at Tyburn, prudence dictated a change of name so as to escape the fury of
the royalists.' However that might be, there was no trace of
1McRee, "Life and Correspondence of James Iredell," Vol. I, p. I.
ï~~154 THE SUPREME COURT OF THE UNITED STATES.
ancestral pusillanimity in the judge: he was ever bold and
outspoken in speech and courageous in conduct. At the age
of seventeen he arrived in Boston, and was deputed by the
commissioners for managing the royal customs to act as comptroller at Edenton, North Carolina, where, soon after his arrival, he entered on the study of the law, under the direction
of Samuel Johnston. For six years he prepared all the accounts, returns and exhibits, and kept the books of the Custom
House. For an uncle, who resided in England, he sold and
leased lands, collected rents and fees, remitted by bills of exchange and cargoes of corn and pork.1 In this way he acquired a thorough knowledge of business, while devoting all
his leisure moments to the law. He was admitted to the bar
in 177o, and slowly but steadily forced his way to leadership.
He became a deputy to the Attorney-General, and an active
political writer upon the topics of the day. In 1777 he was
elected to the bench of the District Court, but held his office
only a year.2 During that time he delivered addresses to
grand juries which were published by request as a means of
invigorating the timid, rousing the indifferent, reclaiming the
disaffected and calling the united strength of the people to the
support of the American cause. Shortly after this he became
Attorney-General, and later a Councillor of State. In the
famous State trials at Warrenton he bore a conspicuous part,
and his argument, sustaining the power of a Court to declare
an act of the legislature void because of an infringement of
the Constitution, was a splendid instance of his bold and original methods of reasoning, and his power of illustration and
statement. About this time the State was convulsed by the
contest over the ratification of the Constitution, and Iredell's
' McRee, "Life and Correspondence of James Iredell," Vol. I., p. 54.
2 Ibid., p. 367.
ï~~'- i'," '
ï~~4b
ï~~JAMES IREDELL.
155
"Reply to the Objections of George Mason," raised him in
the opinion of competent judges to the position of the ablest
legal reasoner in the State.' No one contributed more than
he to bring about the amazing change in the sentiments of
the people which was evinced at the final election.' Mr. Iredell had just completed his labors as commissioner to revise
the laws of his adopted State, when he was appointed to the
vacant position in the Supreme Court of the United States.
This appointment was made without any solicitation upon his
part. He had been led to think that he would be made District Judge for North Carolina, and when the higher dignity
was tendered, it was to him a matter of agreeable surprise.
It is said that Washington derived his conviction of Iredell's
merit from a perusal of the debates in the North Carolina
Convention and the famous Reply to George Mason's Objections.2 His confirmation by the Senate was unanimous, and
Pierce Butler in a graceful letter congratulated the States that
they would no longer be deprived of his aid and the benefit
of his abilities.
The first service performed by the Judges was upon Circuit. The Chief Justice and his associate, Cushing, with
Duane, the District Judge, held the first Circuit Court, for
the Eastern Circuit, in New York City, upon April 3, 1790.
Jay delivered an elaborate charge to the Grand Jury, in which
he inculcated the principles of morality and advised submission to Constitutional authority. Wilson and Blair went upon
the Middle Circuit, while the Southern Circuit was attended by
Rutledge and Iredell.3 It was expected that the Judges would
1 Letter of Chas. Johnson (Speaker of the Senate), to Iredell, Nov. 23, 1789.
McRee's "Life of Iredell," Vol. II, p. 273.
2 Ibid., Vol. II, p. 279.
SThe Eastern Circuit embraced the Districts of New Hampshire, Massachu
ï~~156 THE SUPREME COURT OF THE UNITED STATES.
take these in rotation.1 In traveling through New England
Jay declined every invitation of his friends to lodge with
them, preferring to go to public houses. To one he wrote:
"As a man, and as your friend, I should be happy in accepting your invitation, but, as a judge, I have my doubts-they
will occur to you without details." At New Haven he was
met by a body of the citizens who escorted him as far as his
inn. Boston was lavish of her civilities. Harvard University
conferred upon him the degree of Doctor of Laws; Portsmouth
honored him with a public entry, and on his departure attended him some distance on his journey.2 In the autumn
he again made the circuit, and held Courts at Boston, Exeter,
Providence, Hartford and Albany. Although often urged to
interest himself with the President and Heads of Departments in favor of applicants for office, he scrupulously avoided
interference, except in the single case of Matthew Clarkson,
for the office of Marshal, an office connected with his own
tribunal, and in the faithful discharge of which he was officially interested.
We know nothing of what occurred in the Middle Circuit,4 but we are able to trace, through the charming letters
of Judge Iredell to his wife, his journey from Camden to
setts, Connecticut and New York; the Middle Circuit, the Districts of New Jersey,
Pennsylvania, Delaware, Maryland and Virginia; and the Southern Circuit, South
Carolina and Georgia. Judiciary Act of 1789. Laws of United States, Vol. I, p.
50. At that time North Carolina and Rhode Island had not ratified the Constitution.
'Letter of Samuel Johnston to Iredell, March II, 1790, McRee's "Life of Iredell," Vol. II, p. 285.
2 An interesting account of "The Circuit Court for the New Hampshire District One Hundred years Ago " is to be found in a paper by Win. H. Hackett, Esq.,
"The Green Bag," Vol. II., No. 6, p. 262.
3 William Jay, "Life of John Jay," Vol. II, p. 277.
4 No cases are reported by Dallas until April term, 1792.
ï~~DOUBTS AS TO CIRCUIT DUTIES.
157
Charleston and Savannah, in company with Rutledge. The
nature of the business which came before them is not stated.
From the latter place Iredell proceeded to North Carolina,
under the impression that the Judiciary Act had been extended to that State. As this was doubtful, Rutledge remained at home. After a delay at New Berne, without
information, the former traveled northward to be present at
the August term of the Supreme Court.'
In the preceding April President Washington had addressed a letter to the Chief Justice and Associate Justices,
stating his sense of the importance of having the judiciary
system not only independent in its operations, but as perfect
as possible in its formation, and asking them to communicate
to him whatever occurred to them in the unexplored fields of
their circuits, with whatever remarks they deemed expedient.2
In reply, the Chief Justice, in a letter which does not appear
to have been concurred in by Iredell, urges what he notes as
deviations of the Judiciary Act from the Constitution, calling
for correction: First, that under the appellate jurisdiction
bestowed upon the Supreme Court there was an incompatibility and inconsistency between the offices of Judges of the
Supreme Court and Judges of the Circuit Courts, and that
they ought not to be held by the same persons; and second,
that the assignment by Act of Congress of the Judges
of the Supreme Court to Circuit Court duties was an exercise of powers which constitutionally belonged to the
President and the Senate, the Constitution not having provided that the judges of the inferior Courts should be appointed "otherwise." No immediate result is traceable to
1 McRee's, "Life of Iredell," Vol. II, p. 291.
2 Sparks's "Writings of Washington," Vol. X, p 86.
s McRee's "Life of Iredell," Vol. II, p. 295.
ï~~158 THE SUPREME COURT OF THE UNITED STATES.
this letter, and the point remained undisposed of for several
years. Among the last acts of the administration of President Adams was a bill for "the more convenient organization
of the Courts of the United States," which will be noticed
more particularly in its proper place, by which the Judges of
the Supreme Court were relieved from circuit duty entirely,
and confined to attendance upon the sessions of their own
tribunal. The act was repealed in the following year, and
the old system restored, but the opponents of the repeal
stoutly maintained that, under the Constitution, Congress
could not require the Judges of the Supreme Court to sit at
Circuit. Such, it seems, was the opinion of John Marshall,
which he endeavored to urge upon his associates, without
success. Finally, in the case of Stuart v. Laird,' it was held
that practice and acquiescence, for a period of many years,
commencing with the organization of the judicial system, had
fixed the construction, and that this contemporary and practical exposition was too strong to be shaken or controverted.2
When the Supreme Court met for the second time in
New York City, on the first Monday of August, 1790, Rutledge alone was absent. After the publication of Iredell's
commission, the admission of several counsel, and directions
to the clerk to prepare a seal for the Circuit Court of Rhode
Island, an adjournment took place from lack of business.3
In the following February the Chief Justice laid before
the Court a letter from James Duane, the District Judge of
New York, requesting the appointment of a special Circuit
Court for the trial of prisoners confined in gaol for breaches
of the revenue laws, on the ground that the District Court
1i Cranch, p. 299 (18o3).
2 See also Van Santvoord's "Lives of the Chief Justices," p. 351.
$ Minutes of the Supreme Court.
ï~~FIRST SUIT AGAINST A STATE.
159
was excluded from jurisdiction of these offences by the extent
of the punishment, and that its criminal cognizance thus circumscribed was a burthen to the community without any corresponding advantage. The request was granted, and a similar
special court was ordered to be held in Philadelphia for the
trial of criminals and the relief of certain sea-faring men who
were detained as witnesses.'
At the same term the first instance of a suit by an individual against a State, the case of Vanstaphorst v. The State
of Maryland, appeared upon the record, the Marshal making
return that he had served the summons by copy upon the
Governor, Executive Council and Attorney-General of the
State, in the presence of witnesses. An appearance was entered, without objection of any sort, by Luther Martin as Attorney-General of the State of Maryland, and on motion of
Edmund Randolph, the Attorney- General of the United States,
the State was ordered to plead within two months.2 A commission to take the depositions of certain witnesses in Holland,
with the consent of the counsel for the defendant State was
applied for but refused, until a commissioner was named. This
being done the motion was granted.3 The case was subsequently discontinued, each party agreeing to pay their own
costs.
A suit was also brought by Oswald, administrator, v. The
State of New York,4 in which after a return of service, a motion
was made for a distringas to compel the appearance of the
State; while the matter was under consideration, leave was
given to withdraw the motion and enter a discontinuance.
The case was again renewed, and an order made by the Court
that unless the State should appear by the following term,
1Minutes of the Supreme Court. 'Ibid. 3Ibid.
42 Dallas, 4l01 (1792).
ï~~160 THE SUPREME COURT OF THE UNITED STATES.
and show cause to the contrary, judgment would be entered
by default.
A question of practice also arose. A writ of error had
been presented, issued out of the Office of the Clerk of the
Circuit Court for the Rhode Island district, directed to that
Court, and commanding a return of the judgment and proceedings therein, and a rule was moved for that the defendants rejoin to the errors assigned. It was objected to the
validity of the writ that it had issued out of the wrong office,
and after argument, it was 'unanimously determined that writs
of error to remove causes from inferior courts could regularly
issue only from the Office of the Clerk of the Supreme Court.1
On the ist of August, 1791, John Tucker resigned as
clerk, and Samuel Bayard, of Delaware, was appointed in his
stead.2
A difference of opinion soon arose among the Judges relative to their circuits, and contrary to the expectation and
the wishes of the Southern members of the Court, it was determined that the Judges should be divided into pairs, and
each pair be confined permanently to one circuit.' Iredell, it
seems, was taken by surprise, and Blair voted under a misconception. The burden of "leading the life of a Postboy"
in a circuit of vast extent, under great difficulties of travel
and peril of life in the sickly seasons, fell heavily upon Iredell,
who applied to Congress for relief, but it was not until the
Act of 13th of April, 1792, providing that the Judges should
ride by turns the circuit most distant from the seat of government, that the difficulty was adjusted.'
' West v. Barnes et al., 2 Dallas, 401 (179I). Minutes of the Supreme Court.
'Minutes of Supreme Court.
SMcRee's "Life of Iredell," Vol. II, p. 321.
* Laws of the United States, p. 234.
ï~~
ï~~,,...
ï~~THOMAS JOHNSON.
161
In the meantime John Rutledge had resigned, and Charles
Cotesworth Pinckney and Edward Rutledge having declined
in turn, Thomas Johnson was appointed in the recess on
August 5th, 1791. In transmitting his commission Washington alluded to the opinion which prevailed against the expediency of continuing the circuits of the Associate Judges, and
stated that it was expected that some alterations in the judicial system would be made, with a view of relieving them from
disagreeable tours.'
Johnson was born in Calvert County, Maryland, in 1732.
He was educated under the direction of private tutors, and
subsequently studied law, in which he attained great distinction. In 1774 he was a member of the Committee of Correspondence of his State, and the following year was sent as a
delegate to the Continental Congress, where he had the felicity
of nominating Washington as Commander-in-Chief, a circumstance which led to the most cordial and friendly relations,
which were never disturbed. His attachment to the great
soldier led him to resign his membership in Congress, and go
to the assistance of the American Army then in New England
with a small force which he had raised by his personal exertions. He was the first Governor of Maryland under the new
State Constitution, and held the position for three years. He
warmly advocated internal navigation; on the establishment
of the Federal government he was tendered the place of
United States District Judge for Maryland, but declined it, and
was active in securing the appointment of William Paca, who
was one of the signers of the Declaration of Independence.
He served as a member of the Board of Commissioners for
Locating the District of Columbia. His relations with Wash1Letter of Washington to Thomas Johnson, 7 Aug., 1791, Sparks's "Writings
of Washington," Vol. X, p. 182.
11
ï~~162 THE SUPREME COURT OF THE UNITED STATES.
ington continued to be intimate, and he was frequently visited
by the President at his estate at Rose Hill, near the city of
Frederick. When Jefferson left the Cabinet, the position of
Secretary of State was tendered to him but declined. The
high order of merit due to his services was attested by John
Adams who, when questioned as to how it was that so many
Southern men participated in the war, replied that had it not
been for such men as Richard Henry Lee, Thomas Jefferson,
Samuel Chase, and Thomas Johnson there would never have
been any revolution. Johnson was regularly confirmed on the
7th of November, 1791, and took his seat in the following
August term, but resigned in less than eighteen months on
account of failing health.
A few months prior to this the Judges had asserted with
firmness and boldness the independence of the judiciary as a
coordinate branch of the government. Congress, by an act to
provide for the settlement of the claims of widows and orphans,
and to regulate the claims of invalid pensioners, had imposed
on the Circuit Courts certain duties, and subjected their
action to the consideration and supervision of the Secretary of
War, and finally to the revision of Congress. The Chief
Justice, with Cushing and Duane, the District Judges, refused
to comply, and declared that neither the Legislature nor Executive branches could constitutionally assign to the Judiciary
any duties, but such as were properly judicial, and to be performed in a judicial manner; that the duties assigned were
not of that description, and that neither the Secretary of War
nor any other executive officer, nor even the Legislature were
authorized to sit as a Court of Errors. They regarded themselves under the Act, as commissioners merely, an appointment which they might accept or decline at pleasure. But as
the objects of the act were benevolent, and did honor to the
ï~~JUDGES AS COMMISSIONERS OF PENSIONS.
163
humanity and justice of Congress, out of respect to the Legislature, they declared their willingness to act as Commissioners.
Similar views were declared by Wilson, Blair and Peters, District Judge, and by Iredell and Sitgreaves, District Judge, all
of whom addressed joint letters to the President.' Wilson,
however, absolutely refused at all times to act even as a commissioner. To bring the matter to a judicial determination, the
Attorney General moved, ex officio, for a mandamus to the Circuit Court for the District of Pennsylvania, to proceed in the
case of William Hayburn, who had applied to be put on the
list as an invalid pensioner. An elaborate argument was made,
but because of a division in opinion as to the powers of the
Attorney General the motion was denied. The ground was
then shifted, and a motion made at the instance of Hayburn
himself, and the merits of the case, the scope of the Act of
Congress, and the refusal of the Judges to carry it into effect
were fully considered. No decision was ever pronounced, as
Congress at an intermediate session provided, in another way,
for the relief of pensioners.2
The progress of the Supreme Court towards a position of
independent power and influence was slow and difficult. "It
is much to be regretted," wrote Randolph to Washington,
"that the judiciary, in spite of their apparent firmness in annulling the pension law, are not what some time hence they
will be,-a resource against the infractions of the Constitution
on the one hand, and a steady asserter of Federal rights on the
other." 3 He denounced the crudities of the Federal judiciary
system, the jealousies of State Judges of their authority, the
1 See Letters in extenso, Hayburn's case, 2 Dallas, 409, note (1791).
SAct 28th Feb'y, 1793. Laws of the United States, p. 305.
s Edmund Randolph to Washington, 5th Aug., 1792. Sparks's "Life and Writings of Washington," Vol. X, p. 513.
ï~~164 THE SUPREME COURT OF THE UNITED STATES.
ambiguities of the Constitution, and pointed out that the
most probable quarter from which alarming discontents might
proceed was the rivalship between the two orders of judges.
Mere superiority of talent in the Federal Judges, even if admitted, would not suffice to counterbalance the real talents
and popularity of their competitors. It was possible, too, that
the former might not be so far forgetful of their previous
connection with the State governments as to be indifferent
about the continuance of their old interests there. To these
causes could be traced an abandonment of the true authority
of the National Government. Besides, many severe experiments, the result of which could not be foreseen, awaited the
judiciary. States were to be brought into Court as defendants
to the claims of land companies and of individuals. British
debts still rankled deeply, and it was feared that the precedent, fixed by the condemnation of the pension law, if not
reduced to its precise principles, might justify every constable
in thwarting the laws.
Another opportunity was afforded the judges of defining
the independence of their position. The President, disturbed
by the threatening appearance of public affairs, sought to obtain from the Chief-Justice and his Associates advice upon certain legal questions most interesting and important. Twentynine interrogatories, carefully framed, were submitted: Whether
the principles of international law or the Treaties of the
United States with France gave her or her citizens the right
to fit out originally in the ports of the United States vessels
of war, with or without commissions, or to refit, or re-arm,
or to increase the armament; whether other powers with
whom the United States were at peace could fit out such vessels or exercise similar powers; whether France had a right
to erect courts within the jurisdiction of the United States
ï~~S TA TE TRIA L S.
165
for the trial and condemnation of prizes made by armed vessels in her service; whether the principle that free bottoms
made free goods, and enemy bottoms enemy goods was a part
of the law of nations.' To these the Judges declined to reply, asserting with great and commendable dignity that it
would be improper for them to anticipate any case which
might arise, or indicate their opinion in advance of argument.
A series of exciting State trials now taxed the energies
of the Judges upon Circuit. Chief-Justice Jay, in a charge
delivered to the Grand Jury at Richmond, laid down the
principle that by the common law, independent of any statute, the Federal Courts had power to punish offenders against
the Federal sovereignty; "that the United States are in a
state of neutrality relative to all the powers at war, and that
it is their duty, their interest and their disposition to maintain it; that, therefore, they who commit, aid or abet hostilities against these powers, or either of them, offend against
the laws of the United States, and ought to be punished."2
Two months later Genet, to check whom this doctrine
had been invoked, supplied an American skipper with a
French flag, who captured an English merchantman in the
Delaware. Henfield, an American citizen, without casting off
his allegiance, had enlisted in the service of the privateer.
The English minister demanded his arrest; the French minister insisted on his discharge. Mr. Justice Wilson, in a labored, but scholastic discourse, charged the Grand Jury at
Philadelphia, re-affirming the doctrine of Jay, and Henfield
was indicted, and tried before Wilson, Iredell and Peters, Dis1 Letter of Washington to Ch. J. Jay, &c., 23rd July, 1793. Sparks's "Writings
of Washington," Appendix XVIII, Vol. X, pp. 359-360, 542 et seq.
2 See Wharton's "State Trials of the United States," p. 49.
ï~~166 THE SUPREME COURT OF THE UNITED STATES.
trict Judges. It was the joint and unanimous opinion of the
Court that the acts of hostility committed by the prisoner
were an offence against this country and punishable by its
laws. The Jury refused to convict, while Jefferson sent the
English minister a copy of the charge of the Court, as demonstrating that the Federal government had the power to
punish offenders against the laws of nations. Genet gave a
dinner to " Citizen Henfield," and boasted that the verdict of
the Jury enabled the American people to make war upon
England under the protection of the French flag.1
The common law jurisdiction of the United States in
criminal cases was again asserted, and acted upon in several
instances by different judges for a number of years, until
abruptly denied by Judge Chase on the trial of Worrall, in
1798.2 The doctrine maintained its ground, until further
shaken by Judge Washington and Chief-Justice Marshall,
when it was finally overthrown in United States v. Hudson.3
The Trials of the Western Insurgents, growing out of
the Whiskey Insurrection in Pennsylvania, attracted much
attention at the time, and led the President, in a speech to
Congress, to call the attention of that body to the manner in
which the laws of the United States had been opposed, and
their execution obstructed by combinations too powerful to
be suppressed by the ordinary course of judicial proceedings,
or by the powers vested in the Marshal of the district.4
Verdicts of guilty on several indictments of High Treason
I Wharton's "State Trials of the United States," p. 2.
$ Compare trials of Henfield, Guinet, Villato, Isaac Williams and Worrall, Ibid.,
also U. S. v. Ravara, 2 Dallas, 297 (1793).
'7 Cranch, 32 (1812). See also U. S. v. Coolidge, I Wheaton, 415 (1816). State
of Penna. v. Wheeling Bridge Co., 13 Howard, 519 (1812).
4 See Wharton's "State Trials," 10o2; 2 Dallas, 335 (1795). Sparks' "Writings of
Washington," Vol. XII, p. 46.
ï~~THE WHISKEY INSURRECTION.
167
were obtained, after animated discussions upon the law, and
gradually law and order were restored.
Such was the general character of the duties discharged
by the Judges upon Circuit It is now proper to turn to the
cases which came before the Supreme Court.
2 Mr. Hackett, Clerk of the United States Circuit Court for New Hampshire,
in his interesting sketch of the Circuit Court for the New Hampshire District
one hundred years ago, says:
The sessions of the courts in those days were great events in the town. Perhaps no better illustration of this fact can be had than is contained in the following taken from the "United States Oracle of the Day," a newspaper published
in Portsmouth. In the paper of May 24, I800, appears this, almost the only local
item, which may be regarded as a first-rate notice:
"Circuit Court. On Monday last the Circuit Court of the United States was
opened in this town. The Hon. Judge Paterson presided. After the jury were
empanelled the Judge delivered a most elegant and appropriate charge. The Law
was laid down in a masterly manner: Politics were set in their true light by
holding up the Jacobins as the disorganizers of our happy country, and the only
instruments of introducing discontent and dissatisfaction among the well-meaning
part of the Community. Religion and Morality were pleasingly inculcated and enforced as being necessary to good government, good order and good laws; for 'when
the righteous are in authority the people rejoice.'
"We are sorry we could not prevail upon the Honourable Judge to furnish
a copy of said charge to adorn the pages of the United States Oracle.
"After the charge was delivered, the Rev. Mr. Alden addressed the Throne
of Grace in an excellent and well-adapted prayer."
It may well be supposed that the Judge who was Associate Justice William Paterson, of New Jersey, could hardly afford to concede the request of the New Hampshire editor, as doubtless the charge might be needed to be thereafter given in other
districts by the learned judge, who probably spent more time in its preparation than
was commonly required for matter which adorned the pages of Portsmouth papers
nearly a hundred years ago.-Green Bag, Vol. II., No. 6, 264.
ï~~168 THE SUPREME COURT OF THE UNITED STATES.
CHAPTER XII.
THE FIRST EPOCH: 1790-1801: EARLY DECISIONS UPON CONSTITUTIONAL QUESTIONS:
ADMIRALTY CAUSES: MATTERS OF PRACTICE: CHANGES UPON THE BENCH:
SKETCHES OF PATERSON, ELLSWORTH, CHASE, WASHINGTON, MOORE: CHANGES
IN THE CHIEP JUSTICESHIP: INSTANCES OF POLITICO JUDICIALISM: JUDICIAL
PILURALISTs: ESTIMATE OF THE SERVICES OFP THE OLD SUPREME COURT.
THE first cause of note was that of the State of Georgia
v. Brailsford and others. In 1782, by an Act of
Confiscation, a bond which had been given, in 1774,
by Kelsall and Spalding to Brailsford and others, alleged
aliens, had been sequestrated to the State of Georgia. Brailsford and his copartners had brought suit on the bond in
1791, in the United States Circuit Court for the District of
Georgia. The State had unsuccessfully applied for permission to assert her claim, and judgment had been entered for
the plaintiffs. The State now filed her bill in Equity in the
Supreme Court for an injunction to stay proceedings in the
lower Court, and praying that the Marshal should be directed
to pay over the moneys in his hands to the treasurer of the
State.
Some difference of opinion was expressed as to whether
the State had or had not an adequate remedy at law, and the
Court, Johnson and Cushing dissenting, granted the injunction, so as to retain the money in the custody of the law
until it should be adjudged to whom it belonged.1
x 2 Dallas, 402 (1792). It is remarkable that the very first opinion published in the reports of the decisions of the Supreme Court is a dissenting opinion, that of Mr. Justice Johnson.
ï~~EFFECT OF TREA TIES.
169
A motion was subsequently made to dissolve the injunction and dismiss the bill, but it was allowed to stand until
the next term, when the right of the State to the bond was
tried by a special jury, upon an amicable issue, before the
Supreme Court.' After argument the Chief Justice charged
the jury that it was the unanimous opinion of the Court that
the Act of Georgia did not vest the debt in the State at the
time of passing it; that it was subjected, not to confiscation,
but only to sequestration, and the owner's right to recover it
revived after the peace.
This decision, although not elaborately expressed, involved
the important principle that the Treaty of Peace, like the
Constitution, was in respect to matters embraced by its terms,
the supreme law, and could not be restricted in its operation
by State action or State laws. The same result was reached,
and the same conclusion justified after the most exhaustive
examination in the far more celebrated case of Ware v. Hylton,2
in which the splendid eloquence of Patrick Henry, the great
1 3 Dallas, I (1794). It has been asserted that this case is the only instance of trial by jury in the Supreme Court. This is an error. The Minutes of
the Court disclose that in the case of Oswald v. The State of New York, a jury
was sworn and witnesses called, and a verdict found for the plaintiff of $5,315.o6.
This was in February, 1795. Two years and a-half later a writ of inquiry of
damages in the case of Catlin v. The State of South Carolina, was executed at
the bar of the Supreme Court, and a verdict was given for the plaintiff for $55,002.84. Although judgments were entered, there is no record of any steps to enforce them. In Grayson v. The State of Virginia, a distringas was granted to
compel the State to appear, but this process was abandoned and an alias subpoena
issued, upon the establishment of a general rule by which it was provided that
when process at common law or equity shall issue against a State, the same shall
be served on the Governor and Attorney-General, and that if process in equity
by subpoena should be served sixty days before return day, and the defendant
State should not appear, the plaintiff should proceed ex parte. Minutes. See also
Grayson v. Virginia, 3 Dallas, 32o (1796).
2 3 Dallas, 199 (1796).
ï~~170 THE SUPREME COURT OF THE UNITED STATES.
reasoning faculties of John Marshall at the bar, and the powerful dissenting opinion of Iredell were employed in vain to
convince the Court that Congress had no power to make a
treaty that could operate to annul a legislative act of any of
the States, and thus destroy rights acquired under such an
act. Chase, Paterson, Wilson and Cushing, impressed by the
uncommon magnitude of the subject, the bitter and exciting
controversies it had provoked, and the far-reaching consequences by which their decision would be attended, although
differing upon some matters of detail and in the mode of their
reasoning, reached the conclusion that the Treaty of 1783 was
the supreme law, equal in its effect to the Constitution itself,
in overruling all State laws upon the subject, and the words
that British creditors should "meet with no lawful impediment " were as strong as the wit of man could devise to avoid
all effects of sequestration, confiscation, or any other obstacle
thrown in the way by any law, particularly pointed against
the recovery of such debts. The decision expanded from a
statement of the contractual liability of an individual to an
assertion that the treaty obligations of the nation were paramount to the laws of individual States. Happy conclusion! A
contrary result would have blackened our character, at the very
outset of our career as a nation, with the guilt of treachery
to the terms of the treaty by which our Independence had
been recognized, and would have prostrated the national sovereignty at the feet of Virginia.
A case now came before the Court which excited an unusual degree of attention, both on account of the novelty of
the questions raised and the important political consequences
involved in the decision. Chisholm, a citizen of South Carolina, had brought an action in the Supreme Court against the
State of Georgia, by service of process upon the Governor and
ï~~CHISHOLM EXRS. v. GEORGIA.
171
Attorney-General of that State. Georgia refused to appear,
and the Attorney-General of the United States moved that
unless Georgia caused her appearance to be entered by the
next term, judgment should be entered against her by default
and a writ of inquiry issue. Georgia refused to recognize the
jurisdiction, although it had been acquiesced in in similar suits
by New York, Maryland, South Carolina and Virginia, and
presented, through Dallas and Ingersoll of Pennsylvania, a
written remonstrance and protestation, declining to appear,
even upon argument.'
The reasoning of Randolph, upon whom the burden fell
of breaking his way without assistance into a subject full of
difficulty and replete with danger, is profound and masterly.
Fully conscious of the unpopularity of his motion and of the
condemnation of his native State, he refused to commit an
act of official perfidy by surrendering his own convictions of
duty when brought face to face with a question of Constitutional right.
His contention embraced four propositions: that a State
could be made a party defendant, in any case, in the Supreme
Court, at the suit of a private citizen of another State; that
an action of assumpsit could be maintained against a State;
that service by summons upon the Governor and Attorney
General of a State was a competent service; that an appearance could be enforced by process. All of these were distinctly sustained by the Court, with the exception of the latter,
which for the time being was passed from motives of prudence and delicacy, but it was ordered that unless the State
appeared, or showed cause to the contrary, by the next term,
judgment by default should be entered.
1 Chisholm Lxrs. v. Georgia, 2 Dallas, 419 (1793).
ï~~172 THE SUPREME COURT OF THE UNITED STATES.
Justice Blair planted himself upon the express letter of
the Constitution, which extended the jurisdiction of the Court
in express terms "to controversies between a State and citizens of another State."
" Is then," he asks, " the case before us one of that description?
Undoubtedly it is, unless it may be a sufficient denial to say, that it is a
controversy between a citizen of one State and another State. Can this
change of order be an essential change in the thing intended? And is
this alone a sufficient ground from which to conclude that the jurisdiction of this Court reaches the case where a State is plaintiff, but not
where it is defendant? In this latter case, should any man be asked,
whether it was not a controversy between a State and a citizen of another
State, must not the answer be in the affirmative? A dispute between
A and B is surely a dispute between B and A."
After showing that the Constitution describes generally the
judicial powers of the United States, he points out that it
then proceeds to speak of them distributively, and gives to
the Supreme Court original jurisdiction, among other instances,
in the case where a State shall be a party. He then asks:
"But is not a State a party as well in the condition of a defendant
as in that of plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a plaintiff State? It seems
to me that if this Court should refuse to hold jurisdiction of a case
where a State is defendant, it would renounce part of the authority conferred, and consequently part of the duty imposed on it by the Constitution."
Upon the question of sovereignty, he said:
"But we are not now in a State Court; and if sovereignty be an
exemption from suit in any other than the sovereign's own Courts, it
follows that when a State, by adopting the Constitution has agreed to be
amenable to the judicial power of the United States, she has, in that
respect, given up her right of sovereignty."
ï~~JA Y'S OPINION.
178
The question, said Wilson, " may, perhaps, be ultimately
resolved into one, no less radical than this-' Do the people of
the United States form a nation?'" Applying the touchstones of
the principles of general jurisprudence; the laws and practice
of States and Kingdoms, and the direct and explicit declaration of the Constitution itself, he declared that from all the
combined inference was that the action would lie.
Cushing put the matter concisely:
"With respect to controversies between a State and citizens of another State, comparing all the clauses together, the remedy is reciprocal;
the claim to justice equal. As controversies between State and State,
and between a State and citizens of another State, might tend gradually
to involve States in war and bloodshed, a disinterested civil tribunal was
intended to be instituted to decide such controversies, and preserve peace
and friendship; if a State is entitled to justice in the Federal Court
against a citizen of another State, why not such citizen against the State,
when the same language equally comprehends both? The rights of individuals and the justice due to them are as dear and precious as those
of States. Indeed the latter are founded upon the former; and the great
end and object of them must be to secure and support the rights of
individuals, or else vain is government."
The opinion of Chief Justice Jay is the most elaborate
of his judicial utterances. He pointed to the language of the
Preamble of the Constitution, and to the history of the country
preceding its formation, to emphasize his assertion that the
sovereignty of the nation was in the people of the nation,
who were "sovereigns without subjects," and that a vast distinction existed between such a condition and the sovereignty
of European potentates, whose dignities, pre-eminences, and
powers were personal but not official. In a country where all
citizens were equal, it was agreed that one free citizen could
sue another citizen or any number of citizens; nay, in certain
ï~~174 THE SUPREME COURT OF THE UNITED STATES.
cases one citizen might sue forty thousand; for where a corporation is sued, all the members of it are actually though
not personally sued. He saw no distinction as to right between the forty thousand inhabitants of Philadelphia, associated under a charter, and the fifty thousand citizens of Delaware associated under a State government. The service of a
summons on a Governor and Attorney General of a State was
as easy and convenient to the public and parties, as on the
Mayor or other officers of the corporation of a city. All were
officers of the people, and however more exalted a Governor
might be than a Mayor, yet, in the opinion of those who disliked aristocracy, that circumstance could not be a good reason
for impeding justice. He saw no incompatibility between suability and State sovereignty, and declared that as one State
might sue another State in the Supreme Court, it was "plain
that no degradation to a State was thought to accompany her
appearance in this Court." He then showed that Georgia by
becoming a party to the national compact had consented to be
suable by individual citizens of another State, and argued that
if there was "a controversy" between them it clearly fell not
only within the spirit but the very words of the Constitution.
He insisted that the Constitution had established a new order
of rights and duties, and finally, lest his conclusions might
reach too far, pointed out that there was a distinction between
suits against a State and suits against the United States, because in the former the national Courts were supported in all
their legal and Constitutional proceedings and judgments by
the arm of the National Executive, but in the latter there was
no power which the Courts could call to their aid.
From these views Iredell, alone, dissented, in an opinion
of which it has been truly declared that it enunciates either
directly or by implication all the leading principles of what
ï~~IREDELL'S DISSENT.
175
has since become known as State Rights Doctrine, and which
as a mere legal argument was far superior in closeness, of
reasoning to Wilson's or Jay's. He confined himself strictly
to the question before the Court, whether an action of assumpsit would lie against a State, and showed by numerous illustrations that though in England certain judicial proceedings
by way of petition, not inconsistent with sovereignty, might
take place against the Crown, yet an action of assumpsit
would not lie. Yet surely the King could assume as well as
a State. If such an action could be maintained, it must be
in virtue of the Constitution of the United States, or of
some law of Congress conformable thereto. After closely examining the grant of judicial power, and the distribution of
jurisdiction as stated in the Judiciary Act, he failed to find
any delegation of authority in such a case. He challenged
the construction of the Attorney General that the Supreme
Court could exercise all the judicial power vested by the Constitution, by its own authority, whether the Legislature had
prescribed methods of doing so or not. The Constitution was
not self-enforcing; the Article could not be effectuated without
legislative intervention. All the Courts of the United States
must receive not merely their organization, but all their
authority as to the mode of their proceeding from the Legislature only. There was no part of the Constitution that
authorized the Supreme Court to take up any business where
Congress had left it, and, in order to give full activity to the
powers given by the Constitution, supply legislative omissions
by making new laws for new cases, or by applying old principles to new.cases materially different from those to which
they had been previously applied. The States had not surrendered their sovereignties to the Union in this respect, and
at the time of the adoption of the Constitution there was not
ï~~176 THE SUPREME COURT OF THE UNITED STATES.
in any State any particular legislative mode authorizing a
compulsory suit for the recovery of money against a State.
No new remedy having been provided, the case must be governed by the principles of pre-existing law, and a long train
of precedents showed that no such action could be maintained.
No debt could be due from a State, except in case of a contract with the Legislature itself, or with the Executive in pursuance of express authority, from the Legislature, or in case
of a contract with the Executive without any special authority.
Every man knew that he could not sue the Legislature, nor
could he sue a Governor, unless the Legislature had made
such a provision, and in the third case, as a Governor was
possessed simply of Executive powers he could not make a
contract unless specially authorized. The arguments as to
corporations did not apply. Corporations were the mere creatures of sovereignty, but States were sovereigns themselves;
they did not owe their origin to the Government of the United
States, but were in existence before it. No fair construction
of the Constitution could show that they had abdicated in
favor of the General Government in such a case as this.
It is somewhat singular that no one of the Judges
alluded to the views expressed by eminent public men at the
time the Constitution was before the people for ratification.
The authors of "The Federalist " had declared that such a
jurisdiction was without "a color of foundation." John Marshall had declared in the Virginia Convention: "I hope that
no gentleman will think that a State will be called at the bar
of the Federal Courts.... It is not rational to suppose that the sovereign power shall be dragged before a
Court."
The decision as soon as pronounced created much excitement and fanned anti-federal sentiment into a flame. Every
ï~~NATIONAL SUPREMA C Y.
177
State was burdened with heavy debts. Several had been sued,
and the Legislature of Georgia responded by a statute denouncing the penalty of death against any one who should
presume to enforce any process upon the judgment within its
jurisdiction. The decision was pronounced on the i8th of
February, 1793; two days afterwards the Eleventh Amendment to the Constitution was proposed to Congress, and formally acted upon by that body in the following December.
It was not declared adopted by the several States until January 8th, 1798. In the meantime the Court refused to bend
to the popular fury, and after a year rendered judgment by
default, and ordered an inquiry of damages.' The plaintiff,
however, prudently awaited action upon the proposed amendment, and on the 4th of February, 1798, the case of Hollingsworth v. The State of Virginia 2 being before the Court, it was
declared that in view of the amendment, jurisdiction was renounced "in any case past or future, in which a State was
sued by the citizens of another State, or by citizens or subjects of any foreign State." 3
The importance of the decision, however, remained. It
was the first clear trumpet-note which had been sounded by
the new nation, in striking contrast with the feeble wail
against State power uttered by the Committee of the Continental Congress when dealing judicially with Olmstead's Appeal in the case of the sloop Active. As Judge Cooley has
1 Minutes of the Supreme Court, February 14, 1794.
2 3 Dallas, 378 (1798).
' See Hollingsworth v. Virginia, 3 Dallas, 378-382 (1798). Minutes of the Supreme
Court. Schouler's "History of the United States," Vol. II, p. 274. Pitkin's "History of the United States," Vol. II, pp. 335, 341. Van Santvoord's "Lives of the
Chief Justices of the United States," pp. 51, 54. McRee's "Life of Iredell," Vol.
II, p. 380. Cooley in "Constitutional History of the United States as Seen in the
Development of American Law," pp. 47-7I.
12
ï~~178 THE SUPREME COURT OF THE UNITED STATES.
remarked, the Union could scarcely have had a valuable existence had it been judicially determined that powers of sovereignty were exclusively in the States or in the people of the
States severally? The doctrine of an indissoluble Union,
though not in terms declared, was in its elements contained
in this decision, which proved of priceless value in determining at the very outset of our national career the true character of our government.
In Hylton v. The United States2 the power of Congress
to lay taxes was exhaustively considered, and the principle
established that two rules must be observed: first, that of uniformity, whenever imposts, excises or duties were laid; and
second, that of apportionment according to the census, whenever the tax was direct. It was held that no tax could be
direct unless capable of apportionment, and it was demonstrated by an unanswerable course of reasoning that a tax
upon carriages could not be a direct tax, because apportionment would lead to the grossest and most arbitrary differences
in the rate in each State. Mr. Justice Chase inclined to the
opinion that the direct taxes contemplated by the Constitution
were only two, a capitation or poll tax simply, without regard
to property, profession, or any other circumstances, and a tax
on land. He showed that a tax on carriages was a species
of duty-a generic term, almost as comprehensive as the word
tax, which could not be confined to taxes on importations
only. Although he did not think it necessary at that time
to decide whether the Supreme Court possessed the power,
under the Constitution, to declare an Act of Congress void,
because of a conflict with the Constitution, yet he declared
1 Cooley in "Constitutional History of the United States as seen in the Development of American Law," p. 49.
2 3 Dallas, 171 (1796).
ï~~POWER TO DECLARE ACTS UNCONSTITUTIONAL. 179
that if the Court did have such power he would never exercise it except in a very clear case.
In Calder v. Bull,' although the point actually decided
was that the clause in the Constitution prohibiting the States
to pass ex post facto laws related only to penal and criminal
proceedings, and that therefore a retrospective law of a State,
affecting property rights only, and violating no contract, was
valid, yet two principles of great value in the maintenance of
the rights of the States were enlarged upon; that the
validity of State legislation was at all times to be presumed, and second: that where no Federal question arose,
the proper authority for determining the validity of State
legislation was the State judiciary. Chase declared himself
"fully satisfied" that the Supreme Court had no jurisdiction
to declare void a State law contrary to the Constitution of
such State, and again carefully avoided the question whether it
could declare void an Act of Congress contrary to the Federal Constitution. Iredell, however, while asserting that Acts
of Congress or of the Legislature, violative of Constitutional
provisions, were unquestionably void, admitted that as the
authority to declare them void was "of a delicate and awful"
nature, the Court would never resort to that authority but in
a clear and urgent case.
Some years later, in Cooper v. Telfair, where an act of
banishment and confiscation of property was held to be not
repugnant to the Constitution of Georgia, although it was admitted that a general opinion existed at the bar, and had been
expressed by some of the judges upon Circuit3 that an Act
of Congress in opposition to the Constitution is void, yet, in
the absence of a decision of the Supreme Court itself, it was
1 3 Dallas, 386 (1798). 24 Dallas, 14 (18oo).
3 See remarks of Paterson, J., in Van Horn v. Dorrance, 2 Dallas, 304 (1795).
ï~~180 THE SUPREME COURT OF THE UNITED STATES.
said to be still an open question where the power resided to
declare it void.
Thus, it was, with slow, timid and halting footsteps that
the Supreme Court approached the doctrine of Marbury v.
Madison.
In the meantime the Constitutional adoption of the
Eleventh Amendment was judicially declared in Hollingsworth
v. Virginia,' while in Fowler v. Lindsey2 the distinction was
drawn between a case in which a State was a party, and
where the interests of a State might be indirectly affected by
the decision in a suit relating to land between individuals
claiming under a State grant, Judge Washington stating it
as "a safe rule" that a case which belongs to the jurisdiction
of the Supreme Court, on account of the interest that a State
has in the controversy, must be one in which a State is
either nominally or substantially a party to the record.
During the same period several important cases affecting
the admiralty jurisdiction of the Federal Courts were determined. Of these the most important and instructive, as containing an expression of the growth of the federal idea, was
that of Penhallow v. Doane,' in which the power of the old
Federal Court of Appeals in cases of Capture, instituted by
the Continental Congress under the Articles of Confederation
was sustained, and its jurisdiction declared to be final and
conclusive.
In Glass v. The Sloop Betsey,4 although it was argued
with much ingenuity and learning that the District Courts of
the United States had no jurisdiction over questions of prize,
yet it was held that they possessed all the powers of Courts of
Admiralty, both upon the instance and prize sides and could
13 Dallas, 378 (1798). 'Ibid., 411 (1799). '3 Ibid., 54 (1795).
'Ibid., 6 (1794).
ï~~COURTS OF FOREIGN POWERS EXCLUDED.
181
decree restitution of a vessel belonging to a neutral, captured
as British property by a French privateer and brought to a
port of the United States by the captor. In the same case, it
was asserted with great dignity that no foreign power could
institute a Court of judicature of any kind within the jurisdiction of the United States except by treaty, and that the
admiralty jurisdiction exercised by consuls of France in the
United States was unwarranted. Due care, however, was exercised not to overstep the bounds prescribed by international
law, and later, in the case of a capture of a vessel belonging
to a citizen of the United States by a French privateer, which
had been carried infra frwsidia of the captors, the principle
was sustained that all such questions belonged exclusively to
the tribunals of the belligerent power, and that no vessel of
war of such belligerent or the officers thereof could be seized
or arrested within the United States, at the suit of individuals
to answer for such capture. A writ of prohibition was accordingly issued, restraining a District Court from proceedings
of a retaliatory nature.'
In Talbot v. Jansen,' the only case in the decision of
which Rutledge participated as Chief-Justice, the important
question of the right of expatriation was raised, but not determined, although one or two of the judges inclined, extrajudicially, to the view that a citizen did not possess the right
of voluntary expatriation without the permission of his own
government.
In United States v. Judge Lawrence,3 upon an application
for a mandamus directing him to issue a warrant of arrest, it
was held that the Court had no power to compel a judge to
decide according to the dictates of any Judgment but his own.
1 United States v. Richard Peters, District Judge, 3 Dallas, 121 (1795).
3 Dallas, 133 (1795). ' Ibid., 42 (1795).
ï~~182 THE SUPREME COURT OF THE UNITED STATES.
Several important matters of practice were determined.
The Attorney-General having asked for information relative
to the system by which proceedings should be regulated, it
was ordered that the practice of the Courts of King's Bench
and Chancery in England afforded outlines for the practice
of this Court. The bar was also notified that the Court expected to be furnished with a statement of the material points
of a case.2 All evidence on motions for the discharge of prisoners on bail must be by way of deposition, and not viva
voce.' The statements of facts required by Act of Congress
of the Circuit Courts as the basis of their judgments in any
Equity or Admiralty cause were held to be conclusive.4 In
suits against States, whether at common law or in equity, it
was ordered that service should be made of process upon the
Governor and the Attorney-General, and that the process of
subpcena, when resorted to, should be served sixty days before return day, and on a failure of the State to appear, the
complainant might proceed ex parte.'
Two questions of jurisdiction were also settled: To sustain the Federal jurisdiction, the record must show that the
parties were citizens of different States; 6 the amount demanded by the plaintiff, and not the sum found to be due,
was the test of jurisdiction even upon proceedings in error.7
During the period of the decisions which have been reviewed changes took place in the composition of the bench
which it is now proper to notice. The Court, as originally
' Minutes of the Supreme Court. 2 Ibid.
SU. S. v. Hamilton, 3 Dallas, 17- 1 20 (1795).
4Wiscart v. Dauchy, 3 Dallas, 321 (1796).
6 Grayson v. The State of Virginia, 3 Dallas, 320 (1796).
6 Bingham v. Cabbot, 3 Dallas, 19 (1795). S. C., Ibid. 382 (1798). Turner, Admnr.
v. Enrille, 4 Dallas, 7 (1799). Turner v. Bank, 4 Dallas, 8 (1799).
' Wilson v. Daniel, 3 Dallas, 4o01 (1798).
ï~~
ï~~64'~
{ g NC.'.,
-
ï~~WILLIAM PA TERSON.
183
b
constituted, consisted of Jay as Chief-Justice, and Rutledge,
Cushing, Harrison, Wilson and Blair as Associates. Harrison
had declined, and Iredell had taken his place. Rutledge had
resigned after a few months of service on the Circuit, and
Thomas Johnson had succeeded him. Johnson resigned at
the end of eighteen months, with no trace of his judicial
work except a short dissenting opinion in Georgia v. Brailsford, and on the 4th of March, 1793, William Paterson was
commissioned. His father was an Irish immigrant to New Jersey in 1749, and, according to some accounts, the son was
born in Ireland; according to others, at sea on the passage
to America. He was educated at Princeton, and graduated
September 27, 1763. He read law with Richard Stockton,
one of the Signers of the Declaration of Independence; was
admitted to the bar within a year, and became an attorney
of the Supreme Court in 1769. He took an active part in
public affairs, always on the patriotic side, and was a member of the First Provincial Congress of New Jersey, serving
as Assistant Secretary. In 1775 he became a member of the
Continental Congress, and during the following year was the
Attorney-General of the State and a member of the Legislative Council. He was several times re-elected to Congress,
but resigned all his public positions in 1783 to resume the
practice of the law. He was a member of the Annapolis and
the Federal Conventions, and in the latter offered the plan
so well known as the New Jersey Plan, by which it was proposed to preserve the State sovereignties, while giving to the
General Government power to provide for the common defence and general welfare. He contended that the proper object of the Convention was a mere revision and extension
of the Articles of Confederation. He insisted on an equal
vote of the States in the Senate, and objected to a propor
ï~~184 THE SUPREME COURT OF THE UNITED STATES.
tional representation in either House. After the adoption of
the Constitution, Mr. Paterson was chosen one of the Senators of the United States from New Jersey, his colleague
being Jonathan Elmer. He was one of the tellers to count
the electoral votes, and chairman of the committee to prepare
the certificates of the election and to certify the elected officers. He served as a member of the Judiciary Committee,
and, next to Ellsworth, took the most active share of the
work of framing the Judiciary Act. On the death of Governor Livingston, in 1790, he became the Governor and Chancellor of his State, resigning his position as United States
Senator, and held the former office for three years. During
this time he executed, under the authority of the Legislature,
the work of collecting and reducing into proper form all the
Statutes of Great Britain which before the Revolution were
held to be in force, and which, by the Constitution, were extended to the State, as well as all the public acts which had
been passed since, a work which has been spoken of by a
competent authority as a system of statute law more perfect
than that of any other State, and which has continued to
this day to deserve the highest praise. Such had been the
public services of the man whom Washington now raised to
the Supreme Bench.
In 1795 John Jay, who had been sent during the previous
year as special envoy to Great Britain, was elected Governor
of New York and resigned the Chief Justiceship. Thereupon
the President, notwithstanding the opposition of his cabinet,
whose hostility had been excited by an intemperate attack by
Rutledge upon Jay's treaty, sent a commission during the recess
to John Rutledge, who presided over the Court during the
August term. His name came before the Senate on the iloth of
December, 1795, and on the i5th was rejected, the real reason
ï~~
ï~~ti: P
ï~~OLIVER ELLSWORTH.
185
being that the nmind of this illustrious patriot had become
seriously impaired. William Cushing, the Senior Associate
Justice, was commissioned as Chief Justice on the 27th of January, 1796, but declined, preferring to retain his former position.
Oliver Ellsworth, at that time a Senator of the United
States, was then named, and commissioned on the 4th of
March, 1796; a man of kingly dignity, exalted conscience,
immutability of will, but slow and ponderous intellect. His
name will always rank among the most distinguished statesmen and jurists of America. He was born at Windsor,
Conn., on the 29th of April, 1745. He received a classical
education, and graduated from Princeton in 1766. He then
read law, but was not admitted to the bar until 1771. His
integrity, industry, knowledge of law, careful preparation of
his cases, and earnest logic, occasionally warming into eloquence, soon won for him a commanding position among his
professional brethren. He rose almost at once to political
distinction, and took an active part in support of the colonies
in resisting the oppression of Great Britain. In 1777 he was
elected a delegate to the Continental Congress, and became a
leading member, serving upon important committees, conspicuous for his talents as a debater. In 1784 he was appointed
a judge of the Superior Court of Connecticut. While still
upon the Bench, in I787, he was chosen a member of the
Federal Convention, and exerted a powerful influence in securing substantial recognition of the State governments, which
service has linked his name with that of Paterson of New
Jersey, as one of the authors of our Federal system. He
objected to the word "national," and preferred the title of
"The United States," declaring that he wished the plan of
the Convention to go forth as an amendment of the Articles
of Confederation, since, under this idea, the authority of the
ï~~186 THE SUPREME COURT OF THE UNITED STA TES.
legislatures could ratify it. He did not like popular conventions, as they were better fitted to pull down than build up
Constitutions. He wished the agency of the States maintained, and urged a compromise between the large and small
States as to their vote in Congress. He contended for an
Executive Council, and approved of a council of revision of
acts of Congress, to be composed of the President and the
Judges. For some reason he was absent from the Convention on the last day, and his name does not appear upon the
consecrated roll of the Signers of the Constitution. But in
his own State convention, and ever afterwards, he was among
the most earnest and zealous supporters of the new Government. Having attached himself to the Federal party, he was. elected by the legislature of his native State to the Senate
of the United States, in which he gained great renown as a
debater, and as a pillar of Washington's administration. His
most important work was the establishment of the Federal
Judiciary system. In fact, it is asserted by some that he was
the sole author of the famous Judiciary Act of 1789. "That
great Act," said Mr. Justice Field, "was penned by Oliver
Ellsworth, a member of the Convention which framed the
Constitution, and one of the early Chief Justices of this
Court. It may be said to reflect the views of the founders
of the Republic as to the proper relations between the Federal and State courts." ' "He was born," says Dr. Dwight,
"to be a great man." In one of his Senatorial speeches,
Daniel Webster referred to him as "a gentleman who has
left behind him, on the records of the government of his
country, proofs of the clearest intelligence, and of the utmost
purity and integrity of character," while a recent biographer
1 Ex parte Virginia, ioo U. S., 313-339 (1879).
ï~~
ï~~. 4 W..
ï~~SAMUEL CHASE.
187
has declared that "for strength of reason, for sagacity, wisdom and sound, good sense in the conduct of affairs; for
moderation of temper and general ability, it may be doubted
if New England has yet produced his superior."
The next change occurred through the resignation of
John Blair, his successor being Samuel Chase, a native of
Maryland, who was commissioned on the 27th of January,
1796. He was born in Somerset County, on the 17th of April,
1741, and was the son of an Episcopal clergyman, by whom
he was carefully educated. Devoting himself to the study of
the law, he was admitted to the Bar of Annapolis in 1761,
where his remarkable personal traits soon brought him distinction. His abilities were of the highest order; industry,
intrepidity, intense convictions, energetic eloquence, added to
a sonorous voice and imposing stature, made him conspicuous
as a leader in the Colonial Legislature, where he became
known as "the Maryland Demosthenes." He vehemently
denounced the Stamp Act, and a few years afterwards served
as a member of the Committee of Correspondence and as a delegate to Congress, retaining his position until 1779. His terrible
arraignment of Zubly, of Georgia, whom he stigmatized as a
Judas, compelled that traitor to flee from Congress, whose
secrets he was divulging to the enemy. In 1776, with Franklin and Carroll, he endeavored, as Commissioner, to form a
plan of Union between the Colonies and Canada, and on his
return labored zealously and successfully to change the sentiments of Maryland so as to authorize him to vote for the
Declaration of Independence, of which he became one of the
Signers. Throughout the long and dark years of the war his
exertions were untiring, and his spirit courageous and alert.
In 1783 he interested himself in securing for his State a
large sum of money which had been intrusted to the Bank
ï~~188 THE SUPREME CO UR T OF THE UNITED STA TES.
of England prior to the Revolution. In his State Convention
he was in favor of the ratification of the Constitution, although
many of its provisions he did not regard as sufficiently clear.
In 1791 he became the Chief Justice of the General Court of
Maryland, a position which he held at the time of his appointment to the Supreme Court of the United States. Irascible, vain, overbearing and sometimes tyrannical, but learned,
able, patriotic and of spotless honor, with an instinct for
tumult, and a faculty for promoting insurrection at the bar,
"moving perpetually with a mob at his heels," a suite from
which, as Dr. Wharton writes, even the judicial office could
not separate him; he trusted with general success to his fearlessness to extricate himself from the disorders which his
imprudence fomented. Averse to the assumption of jurisdiction, yet harsh in the manner of exercising that which he
had, with a quick perception of the spirit of the Constitution,
and an intellect conspicuous for its clearness, he presents, as
an American Thurlow, one of the most singular yet striking
figures in our judicial history. He was the only member of
the Supreme Court who was ever impeached for judicial misconduct, but was triumphantly acquitted.
The appointment of Bushrod Washington, of Virginia,
was occasioned by the death of James Wilson, at the house
of his colleague Iredell, where he succumbed, at the comparatively early age of fifty-six, to the misfortunes attending
unhappy speculation in land, the dishonesty of an agent and
the mortification of imprisonment for debt. Washington was
commissioned on the 29th of September, in the recess, and
re-commissioned on confirmation, December 20th, 1798. His
father was John A. Washington, a younger brother of General
Washington, of whom the son was a favorite nephew. His
education was received from a tutor at the house of Richard
ï~~.
//
ï~~
ï~~B USHR OD WASHING TON.
189
Henry Lee, and subsequently at the College of William and
Mary. During the invasion of Virginia by Cornwallis he
joined a volunteer troop of horse, and served in the army under
the command of Lafayette. In 1781 he came to Philadelphia,
bearing a letter from George Washington to James Wilson,
who had been selected as his legal preceptor, and pursued
his studies with diligence and success. Returning to his
native State, he practiced law with close attention to details
and slowly rose to prominence. In 1787 he became a member of the House of Delegates, and in the following year
stood beside Madison and Marshall in their advocacy of the
Constitution of the United States in the State Convention.
Removing to Alexandria, and subsequently to Richmond, he
continued his practice, reporting, in two volumes, the decisions of the State Supreme Court. Of solid rather than brilliant mind, sagacious and searching, rather than quick or
eager, of temperate yet firm disposition, simple and reserved
in his manner, laborious in research, clear in statement,
learned in discussion, accurate in reasoning, with the love of
justice as his ruling passion, "fearless, dignified and enlightened," he found himself at the early age of thirty-six years
called upon by President Adams to fill an office which during
a long judicial life he adorned by labor, learning and wisdom.
The death of Iredell in October, 1799, occasioned another
vacancy, which was filled by the appointment of Alfred Moore,
whose commission was dated December io, 1799. His birthplace was near Wilmington, North Carolina, and the day of
his birth was the 21st of May, 1755. His ancestors were
among the most distinguished of the early settlers of the
Province, his father, Maurice Moore, being one of the three
colonial judges holding office at the outbreak of the Revolution. In 1764 young Moore was sent to Boston, where he
ï~~190 THE SUPREME COURT OF THE UNITED STATES.
became a student at Harvard and attracted attention by his
quick wit and agreeable manners. During his absence he became interested in military matters through the friendship of
a British officer, who sought in vain to induce him to enter
the royal service. Upon his return home, in 1774, he read
law under the direction of his father, and was admitted to the
bar in the following year. He soon exchanged the labors of
the forum for the toils and dangers of war, participating in
the defence of Fort Moultrie in Charleston Harbor, and subsequently organizing a partisan corps with which he so effectually worried the enemy that they singled him out for vengeance and plundered his plantation, carrying off his slaves
and burning his residence. In 1782 he became the AttorneyGeneral of the State, and for nine years labored with such
assiduity as to achieve a reputation rarely equalled by any
prosecuting officer. In 1798 he was appointed a Judge of the
Superior Court, delivering opinions which have been spoken
of in terms of praise by his successors. From this office he
was promoted to the Supreme Court of the United States, but
owing to the practice which prevailed after Marshall ascended
the bench of making the Chief Justice the organ of the
Court, delivered but one short opinion in the case of Bass v.
Tingy.1 He had a keen sense of humor, a brilliant wit, and
an overpowering logic. His style as an advocate was lucid
and direct, terse and compact. He was small in stature, neat
in dress, graceful in manners; his voice was clear and sonorous, his perceptions quick and his judgment almost intuitive;
his manner of speaking was animated. He had chosen Swift
for his model, and his language was always plain. An eminent authority has declared that he is certainly to be ranked
14 Dallas, 37 (i800).
ï~~.liS 06
ï~~t
ï~~JA Y AGAIN APPOINTED CHIEF JUSTICE.
191
among the first advocates whom the American nation has
produced. In politics he was a Federalist, and in 1795 had
been nominated for the United States Senate, but was defeated by a single vote. A county in his native State preserves his memory and his name.'
For the fourth time a change was made in the head of
the Court. In October, 1799, Ellsworth had been commissioned one of the three Envoys Extraordinary and Ministers
Plenipotentiary to France, and resigned the office of Chief
Justice from Paris, in November, 18oo. Without prior
notice to him, Jay was a second time nominated and confirmed, his commission being dated December 19th. "I had
no permission from you," wrote President Adams, " to take
this step, but it appeared to me that Providence had thrown
in my way an opportunity, not only of marking to the public the spot where, in my opinion, the greatest mass of worth
remained collected in one individual, but of furnishing my
country with the best security afforded its inhabitants against
its increasing dissolution of morals." 2 "I left the Bench,"
replied Jay, " perfectly convinced that under a system so defective it would not obtain the energy, weight and dignity
which was essential to its affording due support to the national government; nor acquire the public confidence and
respect which, as the last resort of the justice of the nation,
it should possess. Hence I am induced to doubt both the
propriety and expediency of my returning to the Bench under
the present system.... Independently of these considerations, the state of my health removes every doubt." 3
For the materials of this sketch, I am indebted to the Hon. A. M. Waddell,
of Wilmington, N. C.
'John Adams to Jay, December 19, 18oo, William Jay's "Life of John Jay,"
Vol. II, p. 421.
STo President Adams, January 2, 18or, Jay MSS. Pellew's " Life of Jay," p. 338.
ï~~192 THE SUPREME COURT OF THE UNITED STA TES.
That such an estimate of the Supreme Court and such
a despairing prophecy should be uttered by such a man as
John Jay would occasion much surprise, were it not a fact
that one of the vices of the day was the frequent desertion by
the judiciary of its own exalted functions for other branches
of the service. Doubt and uncertainty as to its true position
clouded its earlier years, "when the politicians-or statesmen
--of that day bivouacked in the chief justiceship on their
march from one political position to another.'x They were
judicial pluralists as well. Jay himself held at the same time
the offices of Chief Justice and Secretary of State for nearly
six months; and afterwards, while retaining the Chief Justiceship, did not scruple to undertake the mission to England,
which caused his absence from the bench for more than a
year, and when at last he resigned, he did so, not because
he thought the two offices incompatible, but because he had
been elected to a third, that of Governor of New York.2
Ellsworth, while Minister Plenipotentiary to France, retained
the Chief Justiceship and resigned only on the ground of illhealth, and even Marshall, who was commissioned as Chief
Justice on January 31, i8oi, and presided during the February Term of the Supreme Court, retained his place as Secretary of State until the incoming of Jefferson's administration,
discharging in the mean time the duties of the two offices
concurrently, on the same day issuing reports in the one
capacity, and listening to arguments in the other.3
1John M. Shirley, "The Dartmouth College Causes and the Supreme Court of
the United States," p. 18.
2 Wharton's "State Trials of the United States," Preliminary Notes, p. 46.
3 Mr. Charles Pinckney, a Senator of the United States from South Carolina, in
March, 18oo, in debate upon a motion for leave to bring in a bill relating to the
Judiciary, contended for the absolute independence of the Judicial department, and
commented with great severity upon the appointment of Judges of the Supreme
ï~~JUDICIAL PLURALISTS.
198
In the beginning of August, i8oo, Judge Chase left the
Bench to canvass the State of Maryland in behalf of the
existing administration, and the result was that the Court,
the Chief Justice then being in France, was left without a
quorum. Charges to Grand Juries were party harangues, and
the State courts adopted in its fullest development "this system of politico-judicialism." It was left for Marshall, after he
had become firmly seated on the bench, to lift the Court into
that serene and lofty atmosphere, which clothed it with the
attributes of a sovereignty beyond the reach of sceptres and
crowns. Confined within Constitutional limits, under the conCourt as Envoys, asserting that it was contrary to the dignity of the President,
and the honor and independence of the Judges, to hold out to them the temptation
of being Envoys, or of giving them other offices, thus placing in the power of the one
to offer, and the others to accept, additional favors. He insisted that no man ought
to hold two offices under the same government, and asserted in particular that no
judge ought to be absent from the United States, or be drawn from his official
station, leaving an undue proportion of its duties to be performed by the remainder
of the Bench. Besides this; as the Chief Justice was to preside in case of the Impeachment of the President, and there was no provision in the Constitution to supply a vacancy, therefore if an Impeachment was to take place in his absence, it must
remain undecided until the Chief Justice could be sent for. He submitted with
great deference that as the President was the only officer on whose trial the Chief
Justice was to preside, or on whose Impeachment his absence would be a public
inconvenience, it was not perhaps presuming too far on his own infallibility or
incapacity to err to send the only officer to a distant country without whose presence in case of an Impeachment a Court could not be formed to try him. Besides
this, a judge might be induced to accept any other appointment from the Executive
of the Union, and might even accept them from individual States or even from
foreign powers, and thus become the minion of the one, or the tool of the other,
as circumstances or his own interest might prompt him. He contended for a provisipn similar to that existing in the State of South Carolina, which by her Constitution provided that no judge should hold any other office of private or public
trust under the State, United States, or any other power. (Benton's Abridgment of
the Debates of Congress, Vol. II, pp. 419, 421.)
It will be remembered that the New Jersey plan expressly provided that none of
the judiciary should, during the time they remain in office, be capable of holding
any other office or appointment during their term of service. See Ante, p. 9o.
13
ï~~194 THE SUPREME COURT OF THE UNITED STATES.
trol of that pure and intrepid jurist, it soon began to develop
its great prerogatives as a co-ordinate and co-equal department of the government.
It must not be forgotten, however, that the earliest decisions of the old Supreme Court determined for all time the
real character of the new government. They established its
national features. They rescued it from State interference
and control. The judges, as they entered upon the terra incognita of national jurisdiction, were perhaps unconscious of
their awful responsibilities, but happily they yielded not to
popular clamor, they swerved neither to the right nor to the
left from the path in which they were guided by the hand of
an overruling Providence. Had they done so, the splendid and
majestic career of the nation would have been frustrated, and
powers bestowed by the Constitution would have been smitten
with incurable palsy. " The real importance of the Supreme
Court," says Judge Cooley, "was never greater than at first.
And the judges who occupied the Bench before the time of
Marshall are entitled to have it said of them that what they
did was of incalculable value to representative institutions, not
in America alone, but throughout the world. They vindicated
the national character of the Constitution; they asserted and
maintained the supremacy of the national authority; they
made plain for the statesmen as well as the jurists who
should come after them the true path of Constitutional
interpretation; and while doing so, they also justified in the
States, as regards purely State questions, the same right of
final judgment which they asserted for the Union in respect
to questions which were national."'
'Thomas M. Cooley, LL.D., "Constitutional History of the United States as
seen in the Development of American Law." "The Federal Supreme Court-Its
Place in the American Constitutional System," p. 52.
ï~~It
w
r
n
ï~~L /
6
ï~~JOHN MARSHALL.
195
CHAPTER XIII.
THE SECOND EPOCH: i8oi-I816. THE SUPREME COURT OF THE UNITED STATES
UND'TER CHIEF JUSTICE MARSHALL: THE FIRST HALF OF MARSHALL'S JUDICIAL
CAREER: SKETCH OF MARSHALL: LEADING DECISIONS: MARBURY V. MADISON:
REPEAL OF THE JUDICIARY ACT OF 18oi1: THE MIDNIGHT JUDGES: IMPEACHMENTS OF JUDGE PICKERING AND JUSTICE CHASE: CASES CONSIDERED BY THE
COURT: INSTANCES OF FEDERAL SUPREMACY: GROWTH OF FEDERAL POWER:
UNITED STATES v. JUDGE PETERS: TRIAL OF AARON BURR: RULINGS UPON
THE LAW OF HIGH TREASON: FLETCHER v. PECK: LAW OF PRIZE AND ADMIRALTY JURISDICTION: CASES OF THE EXCHANGE AND THE NEREIDE: LAND
CASES: SKETCHES OF JUSTICES JOHNSON, LIVINGSTON, TODD, DUVALL AND
STORY: THE EARLY BAR OF THE SUPREME COURT.
IT was a favorable omen that on the day of the first meeting of the Supreme Court of the United States at the
City of Washington as the seat of the national government-4th of February, i8oi-John Marshall sat as Chief
Justice for the first time. He had been summoned to the
lofty duty of presiding over the deliberations of the American
Comzitia Centuriala, and, proceeding to the holiest of temples,
had been proclaimed a magistrate salvis auspiciis creatus.
The appearance of Marshall upon the Bench was an epoch
in the history of the Constitution. The hours of provincialism were numbered. The glory and strength of the nation
were to come, and the decisions of the great Chief Justice, in
which he explained, defended and enforced the Constitution,
were to shed upon the ascending pathway of the Republic
the combined lustre of learning, intelligence and integrity.
"The Providence of God," said Mr. Binney, "is shown most
beneficently to the world, in raising up from time to time, and
ï~~196 THE SUPREME COURT OF THE UNITED STATES.
in crowning with length of days, men of pre-eminent goodness
and wisdom." It was Marshall's happy lot to close the services
of an active and distinguished life with the longest, most honorable and successful judicial career in the history of the most
exalted of tribunals. Fortunate in his opportunities, great in
his achievements, he employed his faculties in the creation of
a system of jurisprudence which ranks among the admired
intellectual productions of the world.
His life was one of reflection and action, of incident and
character. A soldier of distinction, a legislator of commanding
power, a diplomat skillful and subtle, an historian minute,
impartial and accurate, a statesman enlightened and patriotic,
a jurist analytical and profound, a magistrate of awful dignity,
he displayed in every walk of life the highest qualities, and
combined the most opposite characteristics. Born to command,
he easily attained the front rank in every species of labor
which he undertook, yet his modesty was as great as it was
rare. His intercourse, with men was graced by an engaging
charm, a simplicity, a purity of sentiment, a moral loftiness,
an undaunted courage that armed him with a power that not
even Jefferson-his bitter enemy could resist. Whether we
view him as a youth, the son of a virtuous and sturdy sire,
a child of the people and a product of the soil; or as a soldier facing the dangers of battle or sharing the privations of
the camp; or as the champion of the Federal Constitution;
or as an envoy outwitting Talleyrand; or as the biographer of
Washington; or as an advocate of surpassing strength at the
bar; or as a debater in the halls of Congress; or as a Secretary of State and the author of two of the ablest papers in
our archives; or as a Judge fit to rank in creative power with
Nottingham, Hardwicke, Mansfield or Stowell, we find his
career marked with capacity, energy and success. With a mind
ï~~JOHN MARSHALL.
197
mathematical and analytical, not richly stored with technical
knowledge as compared with those of Taney or Story, but,
conscious of its own strength, working out results with astonishing penetration, and resolving every argument into its
ultimate principles; moving among the intricacies of novel
questions with calm but persevering circumspection; with a
marvelous instinct as to what the law ought to be, which enabled him, While other judges were "creeping timidly from
cape to headland, to put boldly out to sea;" close and logical
in the connection of his thoughts, clear as light itself in his
demonstrations, he conquered by pure ratiocination the intellectual convictions and prejudices of his countrymen, and won
by his unsullied character their absolute trust in the integrity
of his tribunal. He was in close communion with the Constitution, from the hour of its birth, for a period of thirty-four
years, and interpreted its provisions upon the sensible theory
that they were not to be restrained in a spirit of jealousy
within less than the fair dimensions of its delegated authority,
nor were they to be extended beyond them in a spirit of usurpation. By a system of practical construction, and by the
exercise of those qualities of lawyer, statesman and patriot,
which in their triple union complete the fame of a great Constitutional Judge, he raised the government from a doubtful
experiment to an assured success, and established it in the
affections and confidence of the people. "He was born," said
William Pinkney, "to be the Chief Justice of any country
into which Providence should have cast him." His career has
called forth the most striking eulogies,' but in none of them
is the sentiment common to all more sententiously expressed
than by Mr. Petigru: "Though his authority as Chief Justice
SThose of Wirt, Story, Kent, Webster, Binney, Sergeant, Van Santvoord, Flanders, Shirley, Magruder, Rawle, Phelps and Hitchcock.
ï~~198 THE SUPREME COURT OF THE UNITED STATES.
of the United States was protracted beyond the ordinary term
of public life, no man dared to covet his place, or express a
wish to see it filled by another. Even the spirit of party respected the unsullied purity of the Judge, and the fame of
the Chief Justice has justified the wisdom of the Constitution
and reconciled the Jealousy of Freedom to the Independence
of the Judiciary."
He was born at a roadside village, called Germantown, in
Fauquier County, Virginia, on the 24th of September, 1755.
His grandfather, of the same name, was a native of Wales,
and his father, Thomas Marshall, who is described as a
man of extraordinary vigor of mind, had been associated with
Washington under the appointment of Lord Fairfax in surveying the western territory. As a lad, young Marshall delighted in the sports of the fields, in foot-races and quoitpitching, in hunting and trapping, and, at a place called
"The Hollow," in the midst of the picturesque beauty of the
mountains east of the Blue Ridge, laid the foundation of that
vigorous health which attended him through life. He was
seldom studious, naturally indolent, full of poetic longings,
and day dreams and romances. In after life he never lost the
simple-mindedness and sensitive modesty of a child, but his
ardent social nature, waggish humor and personal magnetism,
combined with his physical and moral courage and activity
made him the favorite leader of his play-fellows. His earliest
instruction was domestic, but at the age of fourteen he was
sent to a clergyman named Campbell, in whose house, with
James Monroe as a fellow-student, he acquired the rudiments
of grammatical and classical knowledge. A year later he received further instruction from a Scotch gentleman named
Thomson, the clergyman of the parish, but soon returned
home, where he received from his father, who was a practical
ï~~JOHN MARSHALL.
199
surveyor, adequately acquainted with mathematics and astronomy, and familiar with the standard works of history, poetry
and general literature, the only real, systematic training that
he had as a school-boy. " My father," as he frequently said
in after life, "was a far abler man than any of his sons. To
him I owe the solid foundation of all my success in life."
At eighteen he began the study of the law, but the impending struggle with Great Britain distracted his attention before
he had obtained a license to practice. From the time that he
was made a lieutenant in a militia company, in the spring of
1775, until the winter of 1779-when he attended the law
lectures of Wythe, afterwards Chancellor-at William and
Mary College, he was in active service, participating in the
battles of Great Bridge, Iron Hill, Brandywine, Germantown,
Monmouth, Stony Point, and Paulus Hook, and sharing with
unflinching fortitude the sufferings at Valley Forge. In 1780
he was admitted to the bar, and after a short return to the
army to meet Arnold's invasion, continued with assiduity the
practice of his profession. He served as a member of the
Lower House in his native State, and of the Executive Council in the course of the year I1782, and continued intermittently
to discharge such public duties until 1795. In 1788 he was
one of the sturdiest and most influential of the supporters of
the Federal Constitution, when it was before the people of
Virginia for approval, and by the side of Madison met the
shock of the onslaughts of Henry, Mason and Grayson. So
admirable was the temper of his arguments, and such the
spirit of sincerity that they breathed that Patrick Henry pronounced upon him the short but comprehensive eulogium:
"I have the highest respect and veneration for the honorable
gentleman. I have experienced his candor upon all occasions." By this time Marshall's high professional reputation,
-..
ï~~200 THE SUPREME COURT OF THE UNITED STATES
great learning, and extraordinary vigor of mind, made him one
of the most eminent lawyers of the State. In 1796 he argued
the famous case of the British debts in the Circuit Court of
the United States, in opposition to Henry, who spoke, as
Judge Iredell said, "with a splendor of eloquence," but of
Marshall's argument he declared that it was marked by "a
depth of investigation and a power of reasoning" exceeding
anything he had ever known before. About the same time,
in a speech which has been represented as one of the noblest
efforts of his genius, he defended the policy of the mission to
England, and the treaty of peace negotiated by Mr. Jay. The
fame of these admirable arguments spread through the Union,
and when hlie came to Philadelphia in the case of Ware v. Hylton before the Supreme Court of the United States-the only
case he ever argued before that tribunal-he found that his
reputation had preceded him. Soon after, he was tendered the
office of Attorney General of the United States, which he declined, but subsequently accepted a special mission to France
with Charles Cotesworth Pinckney and Elbridge Gerry, in
which he won unbounded popularity by the skill with which
he snatched laurels from the brow of Talleyrand. Yielding
to the persuasions of Washington he became a member of
Congress, at. the sacrifice of the place on the bench of the
Supreme Court made vacant by the death of Iredell. In the
famous debate upon the resolutions of Edward Livingston
censuring President Adams for his conduct relative to the extradition of Thomas Nash, otherwise called Jonathan Robbins,
Marshall delivered that elaborate and triumphant speech,
which, in the language of Judge Story, settled then and forever
the points of international law upon which the controversy
hinged. It was, says the same high authority, one of the
most consummate juridical arguments ever pronounced in the
ï~~MARSHALL BECOMES CHIEF JUSTICE.
201
halls of legislation; and, like Lord Mansfield's answer to the
Prussian Memorial, it was r ponse sans replique. Upon the
retirement of McHenry as Secretary of War, Marshall was
appointed, but before he could insist upon the withdrawal of
his nomination, the rupture took place between the President
and Colonel Pickering, and he was appointed Secretary of
State. Here his thorough knowledge of our foreign relations
enabled him to manage the affairs of his department with signal ability and success, until the incoming of Jefferson's administration. In the meantime Chief Justice Ellsworth had
resigned his place. Marshall, upon being consulted, recommended the appointment of Judge Paterson, but the President
objected lest he should wound the feelings of Judge Cushing,
an old friend and the senior Justice. Thereupon Jay was appointed but declined. As soon as this was known, Marshall's
name was sent to the Senate, which confirmed him unanimously,
and on the 31st of January, 18oi, he was commissioned as
Chief Justice of the United States. In after years John Q.
Adams said that if his father had done nothing else to deserve the approbation of his country and posterity, he might
proudly claim it for this single act. Marshall was now to
crown his illustrious career by labors which have made his
name immortal.
Prior to the decision in Marbury v. Madison, which is
one of the base-stones of his reputation, Marshall, as Chief
Justice, delivered five opinions, one involving a claim to salvage turning upon an alleged recapture, in which he undertook to review elaborately our relations towards France in
1799, and declared that they were those of a partial war;'
one relating to the proper method of appropriating waste
1 Talbot v. Seeman, i Cranch, I (i8oi).
ï~~202 THE SUPREME COURT OF THE UNITED STATES.
lands in Kentucky; ' one in which he upheld the treaty obligations of the nation, even though such a course might
involve an interference with private rights vested under a
decree of condemnation in an inferior court; 2 and two involving mere matters of practice,3 the latter turning upon nice
considerations of the law relating to executions.4 In all these
the conclusions are well and clearly worked out, though at a
length much greater than would be deemed necessary at the
present day.
In the December term, i8oi, Charles Lee, late AttorneyGeneral of the United States, moved for a rule to show cause
why a mandamus should not issue addressed to Madison, then
Secretary of State, commanding him to deliver a commission
to Marbury, whom President Adams, before the expiration
of his term, had nominated as a Justice of the Peace for
the District of Columbia.' The nomination had been confirmed by the Senate. A commission had been filled up,
signed by the President, and sealed with the seal of the
United States, but had not been delivered when Mr. Jefferson
came into office. Acting on the idea that the appointment
was incomplete and void so long as the commission remained
undelivered, Jefferson countermanded its issue. The application made to the Supreme Court was for the exercise of its
original jurisdiction under the terms of the Judiciary Act,
and the main question undoubtedly was whether such a writ
could issue from the Supreme Court under the gift of a jurisdiction by Congress in direct violation of the terms of the
Constitution in distributing original and appellate authority.
1Wilson v. Mason, I Cranch, 45 (18ox).
2 United States v. Schooner Peggy, Ibid. 103 (18o).
3 Resler v. Shehee, Ibid. iIi (18oI). *4Turner v. Fendall, Ibid. 117 (18oi1).
5 Marbury v. Madison, Ibid. 137 (1803).
ï~~MA R B UR Y v. MADISON.
203
The Court held that delivery was not essential to the validity
of letters patent, and that the right of the plaintiff to his
office was complete, and hence he was entitled to a remedy;
but as Congress could not give original jurisdiction to the
Supreme Court, in cases not sanctioned by the Constitution,
the application must be refused.
The importance of this decision lies in the fact that it
was the first authoritative announcement by the Supreme
Court that it had the right as well as the power to declare
null and void an act of Congress in violation of the Constitution. It declared that the Constitution was to be regarded
as an absolute limit to legislative power; that Congress could
not pretend to possess the omnipotence of Parliament. And
although in some respects the decision was obiter dictum,
since the Court declared in the end that it had no jurisdiction of the case, yet it has always been understood as establishing principles which have never since been controverted,
subjecting the ministerial and executive officers of the government all over the country to the control of the courts in
regard to the execution of a large part of their duties.'
The Chief Justice, in the course of his opinion, said:
" If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior
Courts according to the will of that body, it would certainly have been
useless to have proceeded further than to have defined the judicial power
and the tribunals in which it should be vested. The subsequent
part of the section is mere surplusage, is entirely without meaning, if
such is to be the construction. If Congress remains at liberty to give
this Court appellate jurisdiction where the Constitution has declared their
' Address of Mr. Justice Miller on the Supreme Court of the United States,
delivered June 29, 1887, before the Alumni of the Law Department of the University of Michigan. See also United States v. Schurz, 102 United States Reports,
407 (188o).
ï~~204 THE SUPREME COURT OF THE UNITED STATES.
jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction
made in the Constitution is form without substance..... The question
whether an act repugnant to the Constitution can become the law of the
land, is a question deeply interesting to the United States, but happily
not of an -intricacy proportioned to its interest. It seems only necessary to recognize certain principles supposed to have been long and
well established to decide it...... The powers of the Legislature are
defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited,
and to what purpose is that limitation committed to writing, if these
limits may, at any time, be passed by those intended to be restrained?
The distinction between a government with limited and unlimited powers
is abolished if those limits do not confine the persons on whom they are
imposed, and if acts prohibited and acts allowed are of equal obligation.
It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it, or that the Legislature may
alter the Constitution by an ordinary act. Between these 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
ordinary legislative acts, and, like other acts, is alterable when the
Legislature shall please to alter it. If the former part of the alternative
be true, then a legislative act contrary to the Constitution 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.... If an act of the Legislature repugnant to the Constitution is void,
does it, notwithstanding its invalidity, bind the Courts, and oblige them
to give it effect? Or, in other words, though it be not law, does it
constitute a rule as operative as if it was a law? This would be to
overthrow in fact what was established in theory, and would seem at
first view an absurdity too gross to be insisted on. It shall, however,
receive a more attentive consideration. It is emphatically the province
and duty of the judicial department to say what the law is. Those who
apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the Courts must
decide on the operation of each. So if a law be in opposition to the
Constitution; if both the law and the Constitution apply to a particular
case, so that the Court must either decide that case conformably to the
ï~~MARSHALL v. JEFFERSON.
205
law, disregarding the Constitution, or conformably to the Constitution,
disregarding the law,-the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial
duty. If, then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they
both apply."
From this remorseless logic there could be no escape.
Apart from the interest which will always be taken by
lawyers in this famous decision, as establishing a principle
which lies at the foundation of our constitutional jurisprudence, and which places the judiciary upon an independent
and lofty plane, there are certain dramatic features attached
to it which grew out of the history of the times. A recent
historian has pointed out that in the appointment of Marshall
John Adams had intended to perpetuate the Federal principles of his administration, and that Marshall was as obnoxious to Jefferson as the most rigid New England Calvinist
would have been, for Jefferson had determined upon restricting
the powers of the National Government in the interests of
human liberty, and Marshall was bent upon enlarging the
powers of the government in the interests of justice and nationality.'
As the new President and the new Chief Justice stood
face to face upon the threshold of their power, each could
foresee that the contest between them would end only with
life. The judgment of posterity has crowned Marshall as
the victor.
Marbury and Madison, says another writer, were the John
Doe and Richard Roe of the ejectment; the real issue was
1 Henry Adams, "History of the United States, i8oi to 1805," Vol. I, p. 192.
ï~~206 THE SUPREME COURT OF THE UNITED STATES.
between John Marshall and Thomas Jefferson-a trial of
strength in their new positions.'
The opinion of Marshall was regarded by Jefferson as a
defiance. Even the strongest admirers of the Chief Justice
admit that his manner of dealing with the case was unusual.
Ordinarily where a cause was to turn on a question of jurisdiction, the Court would consider that point as first and final,
but instead of beginning at that point and dismissing the
motion the Court reversed the order of discussion in the
manner already indicated. The settled bent of Marshall's
mind was towards the maintenance of the sanctity of pledged
word; the Executive should be held to the performance of a
contract, and although the Court could not intermeddle with
the prerogative of the Executive, it might and would command the head of a department to perform a duty not depending on executive discretion, but on particular acts of Congress and the general principles of law.
It may well be, also, that Marshall smarted under a
sense of wrong growing out of the suspension of the sessions
of the Supreme Court by legislative artifice, under the dictation of the President, for a period of fourteen months, which
delayed the delivery of the opinion until February, 1803.
The Federalists, at the close of their days of power, had, by
an Act of Congress, dated the x3th of February, 1801,2 sought
to entrench themselves, as their critics and political opponents
alleged, in the judiciary department, by re-arranging the judicial Districts and by the establishment of separate Circuit
Courts. Twenty-two Districts were established, and were
' Shirley, "Dartmouth College Cases and the Supreme Court of the United
States," p. 393.
2 Act of 13th February, I8or, Laws of the United States, Vol. III, p. 405, Ed.
of 1815.
ï~~THE MIDNIGHT JUDGES.
207
divided into six Circuits. In each of the Circuits, except the
sixth, there were to be three Circuit Court Judges, one of
whom should be commissioned as Chief Judge, and none of
whom should be judges of the Supreme Court of the United
States. In the sixth Circuit the Circuit Court was to consist
of a Circuit judge and the two judges of the District courts
of the Districts of Kentucky and Tennessee, and the old District courts in those Districts were abolished. The number
of Justices of the Supreme Court was to be reduced after the
next vacancy to five, making a Chief Justice and four Associates. This new arrangement, which was intended to meet
the Constitutional objections which had been raised by the
Judges of the Supreme Court themselves as to their sitting
at circuit, as well as to provide an intermediate court of appeal, entirely separate in its personality from that of the
Court of last resort, gave to President Adams the appointment of sixteen new judges, and their commissions were
signed and delivered upon the eve of his departure from
office, and the incumbents were derisively styled " The Midnight Judges." The moment that Jefferson came into power
a systematic and well-organized attack was made upon the
Federal judiciary. The Act establishing separate Circuit
Courts was repealed after a long and acrimonious debate in
Congress 1 notwithstanding the Constitutional argument that
was made by the Federalists in opposition, and in order to
prevent Chief Justice Marshall and his Associates from interfering with the new arrangements, Congress, while destroying
the new Circuit Courts, adopted the drastic remedy of suspending for more than a year the sessions of the Supreme
1 Act of March 8, 18o2, Laws of United States, Vol. III, p. 450, Ed. of 1815.
Also Act of April 29, 1802, Ibid. p. 479. See Adams' "History of the United States,"
Vol. I, pp. 274, 298, Vol. II, p. 143.
ï~~208 THE SUPREME COURT OF THE UNITED STATES.
Court itself by abolishing the August term. This Congressional assault was followed up by the impeachment of Judge
Pickering who had become insane from habits of drinking,
and by the impeachment of Justice Chase, an Associate Justice of the Supreme Court, whose violent partisan harangues
from the Bench, and whose conduct upon the trial of Fries
six years before, were seized upon as pretexts, the real object
being to establish the point that the bench could be reached
through impeachment for high crimes and misdemeanors.
These movements were intended to be the forerunners of a
general attack upon those members of the judiciary, including
Marshall himself, who seemed bent upon the consolidation of
the government through the judiciary department.
Pickering, the United States District Judge for the District of New Hampshire, was found guilty, although clearly
insane, a fact which robbed his conviction of its significance,
while the triumphant acquittal of Chase, through the extraordinary skill and ability of his counsel, Luther Martin, Robert
G. Harper and Joseph Hopkinson, in compelling John Randolph and his fellow-managers to admit that the phrase "high
crimes and misdemeanors" in the Constitution meant indictable offences, proved the safety of the Supreme Court, and
rescued the Judiciary from the dangers of its position.
Thenceforth John Marshall was safe, and he proceeded at
his leisure to establish the principles of Constitutional
law.
John Randolph, in a rage, submitted an amendment to
the Constitution: "The Judges of the Supreme Court and all
other Courts of the United States shall be removed by the
President on the joint address of both Houses of Congress."
But he could not command sufficient support. The bitterness
of Jefferson had not died out when, fifteen years later, he
ï~~MARSHALL'S REBUKE OF JEFFERSON.
209
wrote to a friend:' "The judiciary of the United States is the
subtle corps of sappers and miners constantly working underground to undermine the foundations of our confederated
fabric. They are construing our Constitution from a co-ordination of a general and special government to a general and
supreme one alone.... Having found from experience
that impeachment is an impracticable thing, a mere scarecrow, they consider themselves secure for life; they skulk
from responsibility.... An opinion is huddled up in
conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy and timid
associates, by a crafty chief judge who sophisticates the law
to his mind by the turn of his own reasoning."
Once more did Marshall have an opportunity of reflecting
upon the President. In Little v. Barreme et al.,2 a commander
of a ship-of-war was held answerable in damages to a person
injured, even though he had acted under the instructions of
the President. "Instructions not warranted by law," said the
Chief Justice sententiously, "cannot legalize a trespass."
Some years elapsed before a second question of national
importance arose. In the meantime a variety of cases were
decided, to which a general reference will be sufficient to indicate their extent and character. Presumption of payment;'
application of payments; commercial paper; indorsements;6
1 Letter of Thomas Jefferson to Thomas Ritchie, December 25, 1820, "Jefferson's Works," Vol. VII, p. 192.
2 2 Cranch, 170 (1804).
SDunlop & Co. v. Ball, 2 Cranch, ISo (1804).
* Field el al. v. Holland et al., 6 Cranch, 8 (i8Io).
5 French's Exr. v. Bank of Columbia, 4 Cranch, 142 (1807).
SClark v. Young & Co., I Cranch, 181i (18o3). Wilson v. Lenox, Ibid., 194 (1803).
Mandeville & Jameson v. Riddle & Co., Ibid., 290 (1803). Yeaton v. Bank of
Alexandria, 5 Cranch, 49 (1809). Dulany v. Hodgkin, Ibid., 333 (18o9).
14
ï~~210 THE SUPREME COURT OF THE UNITED STATES.
insurance;' salvage 2 prize; sviolations of the embargo or nonintercourse act;' patent rights;' chancery jurisdiction in cases
of dower;' tacking;' equity pleading;8 pleading at law:'
devise;1Â~ abatement of legacies; n evidence; 12 usury; 13 setoff;14 land laws; 1 the ownership of slaves; 16 statutes of limitation;1" wills, executors and trustees "-these and kindred
subjects, argued at length with the most profuse display of
learning, were patiently and exhaustively considered. Several
points of jurisdiction were determined: Federal jurisdiction
being sustained in a case between citizens of the same State,
where the plaintiffs were only nominal plaintiffs for the use
of an alien,9 and declined where all the parties were aliens.2'
It was also held that a citizen of the District of Columbia
I Head & Amory v. Providence Ins. Co., 2 Cranch, 128 (1804). Church v. Hubhart, Ibid., 187 (1804). Graves & Barnewall v. Boston Marine Ins. Co., Ibid., 419
(1805). Marine Ins. Co. of Alexandria v. Wilson, 3 Cranch, 187 (1805).
* Mason v. Ship Blaireau, 2 Cranch, 240 (1804).
3Armitz Brown v. The United States, 8 Cranch, 110o (1814). Talbot v. Seeman,
I Cranch, I (18oi). Murray v. Schooner Charming Betsey, 2 Cranch, 64 (1804).
* United States v. Brig Eliza, 7 Cranch, I13 (1812). Brig Penobscot v. United
States, Ibid., 356 (1813).
5Tyler et al. v. Tuel, 6 Cranch, 324 (1810).
6Herbert et at. v. Wren and wife et al., 7 Cranch, 370 (1813).
'Fitzsimmons v. Ogden, 7 Cranch, 2 (1812).
8 Milligan, Admr. v. Milledge and wife, 3 Cranch, 220 (1805).
9Cooke v. Graham's Admr., 3 Cranch, 229 (18o5).
10 Lambert's Lessee v. Paine, 3 Cranch, 97 (18o05).
11 Silsby v. Young & Silsby, 3 Cranch, 249 (18o6).
1s Wilson v. Speed, 3 Cranch, 283 (18o6).
' Levy v. Gadsby, 3 Cranch, 18o (1805).
14 Winchester v. Hackley, 2 Cranch, 343 (1804).
1s Huidekoper's Lessee v. Douglass, 3 Cranch, I (I805).
1 Scott v. Negro Ludlow, 3 Cranch, 325 (18o6).
17 Paw v. Roberdeau's Excr., 3 Cranch, 175 (18o05).
"'Griffith v. Frazier, 8 Cranch, I1 (1814).
"*Browne v. Strode, 5 Cranch, 303 (18o9).
o Montalet v. Murray, 4 Cranch, 47 (1807).
ï~~THE RIGHTS OF ALIENS.
211
was not a citizen of a State within the meaning of the Constitution, and could not sue a citizen of Virginia in the Circuit Court for the Virginia District. "It is extraordinary,"
said the Chief Justice, "that courts open to aliens, and to the
citizens of every State in the Union, should be closed upon
them, but this is a subject for legislative and not judicial consideration." 1 It was also ruled that where there are two or
more joint plaintiffs, and two or more joint defendants, each
one of the plaintiffs must be capable of suing each of the defendants to support Federal jurisdiction.2 Where the decision
of a State Court was in favor of the privilege claimed under
an Act of Congress, it was held that the Supreme Court had
no jurisdiction on a writ of error to a State Court under the
25th Section of the Judiciary Act.3
In Mcllvaine v. Coxe's Lessee4 the question was twice argued
whether a person born in the colony of New Jersey before the
war with Great Britain, and who resided there until 1777, and
then joined the British army, and afterwards went to England,
where he resided ever afterwards, and always claimed to be
a British subject, could take lands in New Jersey by descent
from a citizen of the United States. Although the Court declined, as they had done twice before, to pass directly upon
the question of expatriation,5 yet they held that he could
1Hepburn and Dundas v. Ellzey, 2 Cranch, 445 (1805). This was in accordance with the result reached in Reily v. Lamar et al., 2 Cranch, 344 (18o05), where
it was held that the inhabitants of the District of Columbia by its separation from
Virginia and Maryland ceased to be citizens of those States respectively. A similar disability rests upon a citizen of a Territory, who cannot sue a citizen of a
State in the Courts of the United States. A Territory is not a State in the sense
intended by the Constitution. Corporation of New Orleans v. Winter, I Wheaton,
92 (1816). 2Strawbridge v. Curtiss, 3 Cranch, 267 (I8o6).
SGordon v. Caldeleugh, 3 Cranch, 269 (18o6). 42 Cranch, 280 (1804).
5 See Talbot v. Jansen, 3 Dallas, 133 (1795). The Charming Betsey, Circuit
Ct. of Penna., 26th May, 1802, S. C. 2 Cranch, p. 64 (1804).
ï~~212 THE SUPREME COURT OF THE UNITED STATES.
take and hold such lands, as New Jersey as a sovereign State
had the right to compel her inhabitants to become citizens
thereof, as she had endeavored to do by an act of 1776, nor
could the State allege alienage in one over whom she had
asserted authority; nor did the Treaty of Peace diminish her
sovereignty.' In contrast with this was the decision that a
person born in England before the year 1775, and who always
resided there and never was in the United States, is an alien,
and could not, in the year 1793, take lands in Maryland by
descent from a citizen of the United States.2
Federal supremacy was sustained in a series of interesting cases, in several of which the Chief Justice speaks in a
tone of conscious pride and strength. In sustaining the claim
of the United States to a preference in all cases of insolvency
or bankruptcy3 he says:
"This claim of priority on the part of the United States will, it has
been said, interfere with the right of the State sovereignties respecting
the dignity of debts, and will defeat the measures they have a right to
adopt to secure themselves against delinquencies on the part of their own
revenue officers. But this is an objection to the Constitution itself. The
mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of Congress extends."
The paramount obligations of the Treaty of Peace were
again asserted, and it was held that the Virginia statute of
limitations could not operate upon debts contracted before the
date of the treaty. In Jennings v. Carson,' in affirmance of
1Mcllvaine v. Coxe's Lessee, 4 Cranch, 211 (i8o8).
2 Dawson's Lessee v. Godfrey, 4 Cranch, 321 (18o8).
3 U. S. v. Fisher el al., 2 Cranch, 358 (18o4).
4Hopkirk v. Bell, 3 Cranch, 454 (i8o6).
54 Cranch, 2 (1807).
ï~~OLMSTEAD REDIVIVUS.
213
Penhallow v. Doane,' it was held that the District Courts of
the United States were courts of prize, and had power to carry
into effect the sentences of the old Continental Courts of Appeal in cases of Capture. About the same time it was ruled,
with some display of offended dignity, that the Courts of the
United States will not enforce an agreement entered into in
fraud of a law of the United States, even though the parties
to the agreement were public enemies and the agreement was
a mere stratagem of war.2
We now encounter a signal instance of the growth of
Federal power. As has been seen,3 in the case of the sloop
Active, the State of Pennsylvania was able to resist successfully the execution of a decree entered by the Standing Committee of Appeals in Cases of Capture, reversing the judgment of her own Court of Admiralty sustaining as final the
verdict of a jury distributing prize money. The Continental
Congress, although defenfiding their jurisdiction by the most
pointed and unanswerable logic, had cowered before the authority of the State and shrunk timidly from any prospect of
collision, abandoning the appellants to their fate. Quietly
awaiting the course of events, Olmstead, whose original appeal
had been brought in 1779, watched the collapse of the Confederation, the adoption of the Constitution and the establishment of the new government, and then availing himself of the
doctrine of Penhallow v. Doane, filed his libel in the District
Court for the District of Pennsylvania and obtained a decree
in his favor. Upon the refusal of Judge Peters to grant an
attachment, who for prudential reasons deemed it best to avoid
embroiling the government of the United States and that of
Pennsylvania, an application was made to the Supreme Court
13 Dallas, 54 (1795). 2 Hannay v. Eve, 3 Cranch, 242 (i8o6).
3 Ante, Chap. IV., p. 53.
ï~~214 THE SUPREME COURT OF THE UNITED STATES.
in 18o8, for a mandamus to be directed to the Judge.' The
writ was awarded by the Chief Justice in one of his most
characteristic judgments. "With great attention and serious
concern" he examined the question of jurisdiction, and after
a calm but convincing course of reason in support of Federal
power, solemnly declared:
" If the legislatures of the several States may at will annul the
judgments of the Courts of the United States, and destroy the rights
acquired under those judgments, the Constitution itself becomes a solemn
mockery, and the nation is deprived of the means of enforcing its laws
by the instrumentality of its own tribunals. So fatal a result must be
deprecated by all, and the people of Pennsylvania not less than the citizens of every other State must feel a deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal
to themselves."... "The State of Pennsylvania can possess no
Constitutional right to resist the legal process which may be directed
in this case. It will be readily conceived that the order which this
Court is enjoined to make by the high obligations of duty and of law
is not made without extreme regret at the necessity which has induced
the application. But it is a solemn duty and therefore must be performed."
There could be but little doubt as to the result when
John Marshall sounded such a note, but the State still maintained an attitude of defiance. The subsequent proceedings,
though not occurring in the Supreme Court, are interesting
as showing that the national gristle had hardened into bone.
Service of the attachment was resisted by the State militia
under General Bright, who had been called out by the Governor, under the sanction of the Legislature. The Marshal
retired, naming a day for the service of the warrant, and
summoned a posse of two thousand men. Bloodshed was
imminent. The Governor appealed to President Madison,
' U. S. v. Judge Peters, 5 Cranch, I15 (1809).
ï~~SUPREMACY OF THE UNITED STATES.
215
begging him to discriminate between factious opposition to
the laws of the United States and resistance to the decree of
a Judge founded on a usurpation of power, but Madison replied that he was not only unauthorized to prevent the execution of a decree of the Supreme Court, but was specially
enjoined by statute wherever any such decree was resisted to
aid in its enforcement. The State then beat a retreat. The
Legislature appropriated money to pay the decree, and Olinstead, after a struggle for justice which had lasted thirty
years, obtained the fruits of his valor. But the conflict had
not ended. General Bright and his men were brought to
trial, for forcibly obstructing Federal process, before Mr. Justice Washington, and after a sharp contest were convicted
and sentenced to fine and imprisonment.' These were remitted by the President on the ground that the prisoners had
acted under a mistaken sense of duty, but the priceless principle had been established that the Constitution and laws of
the United States were the supreme law of the land, and
that the Judges in every State were bound thereby, anything
in the Constitution or laws of any State to the contrary notwithstanding.
In the important and interesting case of Ex parle Bollmann and Exr parte Swartwout,2 the Chief-Justice dealt with
the power of the Court to issue the writ of habeas corpus, as
well as with the law of treason. Colonel Swartwout was the
Chief of Staff of Aaron Burr, and had borne a letter in
cipher from Burr to General Wilkinson, then Commander-in1 Trial of General Bright, in the Circuit Court of the United States, for the
District of Pennsylvania, printed at Philadelphia, 1809. Richard Peters, Jr., "The
whole Proceedings in the case of Olmstead v. Rittenhouse," Philadelphia, 18o9.
United States v. Peters, 5 Cranch, 115 (18o9). Ross el atl. Executors v. Ritten.
house, 2 Dallas, 16o (1792). Journals of continental Congress, vol. 5, 372.
24 Cranch, 75 (1807).
ï~~216 THE SUPREME COURT OF THE UNITED STATES.
chief of the Army of the United States, and the Military
Governor of the newly-acquired territory of Louisiana. The
letter disclosed the particulars of an intended movement down
the Ohio and Mississippi, en route to New Orleans, and
thence to Mexico. Wilkinson, who succeeded in weaving a
web of mystery about his real attitude towards the enterprise,
pretended to hesitate as to his conduct, but finally disclosed
the treasonable conspiracy to the President, who issued a
proclamation denouncing it. Wilkinson then seized Swartwout, Bollman and others, as emissaries of Bunr, and sent
them under guard to Washington, where they were committed by the Circuit Court of the District of Columbia on the
charge of treason. Motions were made in their behalf for
writs of habeas corpus, and the question of the power of the
Court to issue such a writ was elaborately argued. Mr. Justice Chase doubted the jurisdiction of the Court in any case,
although he agreed that any of the Judges might issue the
writ at chambers if the application were made within the
proper Circuit. Mr. Justice Johnson thought that the power
was given to the Judges merely as auxiliary to some other
jurisdiction, but could not be exercised by the Court collectively. His views were clearly and ably stated, and a most
skillful use made of Marbury v. Madison. He insisted that
no original powers could be vested by Congress in the Supreme Court beyond those to which the Court was restricted
by the Constitution, and that the principle of that decision
applied as much to the issuing of a habeas corpus in a case
of treason as to the issuing of a mandamus in a case not
more remote from the original jurisdiction of the Court.
Marshall, at the very outset of his opinion, expressly disclaimed all jurisdiction not given by the Constitution or by
the laws of the United States, and refused to yield to the
ï~~THE LAW OF TREASON.
217
argument which had been made by Harper that the writ
might issue at common law; but he considered that the Fourteenth Section of the Judiciary Act contained a substantive
grant of the power, and pointed out that the terms of the
grant must include the Supreme Court, because a denial
would involve a denial of power to every other Court:
"Whatever motives might induce the Legislature to withhold from
the Supreme Court the power to award the great writ of habeas corpus,
there could be none which would induce them to withhold it from every
Court in the United States; and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be,
that the first sentence vests this power in all the Courts of the United
States; but as those Courts are not always in session, the second sentence vests it in every judge or justice of the United States."
The second point he treated briefly:
"In the mandamus case it was decided that this Court would not
exercise original jurisdiction except so far as that jurisdiction was given
by the Constitution. But so far as that case has distinguished between
original and appellate jurisdiction, that which the Court is now asked to
exercise is clearly appellate. It is the revision of a decision of an inferior Court by which a citizen has been committed to jail."
The motion being granted, the Court, after argument,
considered whether there was sufficient evidence to justify a
holding to bail, and in the course of a most elaborate opinion
discussed the law of treason. After quoting the language of
the Constitution, Marshall rules:
"To constitute that specific crime for which the prisoners now before the Court have been committed, war must be actually levied against
the United States. However flagitious may be the crime of conspiring
to subvert by force the government of our country, such conspiracy is
not treason. To conspire to levy war, and actually to levy war, are distinct offences. The first must be brought into operation by the assem
ï~~218 THE SUPREME COURT OF THE UNITED STATES.
blage of men for a purpose treasonable in itself, or the fact of levying
war cannot be committed.... It is not the intention of the Court to say
that no individual can be guilty of this crime who has not appeared in
arms against his country. On the contrary, if war be actually levied,that is, if a body of men be actually assembled for the purpose of
effecting by force a treasonable purpose,-all those who perform any
part, however minute, or however remote from the scene of action, and
who are actually leagued in the general conspiracy, are to be considered
as traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war."
Whatever might have been the connection of the prisoners with Burr and the operations set on foot by him, yet
the offence of treason was not established to the satisfaction
of the Court, and they were discharged. Upon the trial of
Burr, over wljich Marshall presided, it was found necessary
to explain and defend these doctrines. Upon the struggle to
connect Burr with the transactions at Blennerhassett's Island,
which proved the turning-point of the case, the Chief Justice,
while still adhering to the rule laid down in the case of
Bollman and Swartwout, which had been severely criticized
as countenancing constructive treason, ruled out as irrelevant
and inadmissible all the testimony offered by the United
States to connect the prisoner, who it was admitted was at a
great distance in a different State, with the alleged levying
of war on the island.
These rulings were bitterly assailed. " Marshall," said
Wirt, "has stepped in between Burr and death." Burr himself, when subsequently held to bail upon a charge of misdemeanor, declared it was "a sacrifice of principle to conciliate
Jack Cade." Giles, a Senator of the United States from Virginia, introduced a bill at the next session of Congress to
define treason, exclaiming with great warmth: "I have
learned that judicial opinions on this subject are like change
ï~~TRIAL OF AARON BURR.
219
able silks, which vary their colors as they are held up in
political sunshine." At this time, when the passions and
prejudices of the hour have perished, it is possible to form a
calm judgment of the matter, and it is not too much to assert that the august figure of Marshall presented the impersonation of unbending, inflexible justice.
" The impartiality which marked the conduct of those trials was
never excelled in history... No greater display of judicial skill and
judicial rectitude was ever witnessed.... The Judge was unmoved by
criticism, no matter from what quarter, and was content to await the
judgment of posterity, that never, in all the dark history of State trials,
was the law, as then it stood and bound both parties, ever interpreted
with more impartiality to the accuser and the accused." 1
"Why did you not tell Judge Marshall that the people
of America demanded a conviction?" was the question put to
Wirt after the trial. "Tell /im that!" was the reply. "I
would as soon have gone to Herschel, and told him that the
people of America insisted that the moon had horns, as a
reason why he should draw her with them." '2
The case of Fletcher v. Peck 3 will be always memorable
as the first of that long line of instances in which the statutes
of a State repugnant to the Constitution have been held to be
void. It is the first judicial determination of a constitutional
restriction upon the powers of the States. It towers above
the decisions of a period of many years, important and imposing though they are, and, with Marbury v. Madison, stands
as an outspur of that magnificent range of adjudications
which bear to our Constitutional jurisprudence the relative
1 Oration by Wn. Henry Rawle, LL.D., at the unveiling of the Statue of Chief
Justice Marshall at Washington, May Io, 1884.
2 Van Santvoord's "Lives of the Chief-Justices," p. 379.
16 Cranch, 87 (18Io).
ï~~220 THE SUPREME COURT OF THE UNITED STATES.
strength and majesty of the Rocky Mountains to our physical geography. The State of Georgia had sought by legislative enactment to destroy rights acquired under a previous
statute of the same State, granting lands to an individual.
It was held that a grant was a contract executed, the obligation of which continued; and since the Constitution drew no
distinction between contracts executed and executory, the Constitutional clause must be so interpreted as to comprehend both.
"A law annulling conveyances between individuals and declaring
that the grantors should stand seized of their former estates notwithstanding these grants," said the Chief-Justice, "would be as repugnant
to the Constitution as a law discharging the vendors of property from
the obligation of executing their contracts by conveyances. It would be
strange if a contract to convey was secured by the Constitution, while
an absolute conveyance remained unprotected."
Nor was the sovereignty of a State too exalted for the
restrictions of this clause:
"Whatever respect might have been felt for the State sovereignties,
it is not to be disguised that the framers of the Constitution viewed
with some apprehension the violent acts which might grow out of the
feelings of the moment; and that the people of the United States, in
adopting that instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are exposed. The restrictions upon the legislative
power of the States are obviously founded in this sentiment, and the
Constitution of the United States.contains what may be deemed a bill of
rights for the people of each State."
The same great principle of the sanctity of rights vested
under legislative grants was illustrated and enforced within a
few years afterwards, as against a similar course of action on
the part of New Jersey, Virginia and New Hampshire.'
'The State of New Jersey v. Wilson, 7 Cranch, 164 (1812). Terrett v. Taylor, 9
Cranch, 43 (1815). The Town of Pawlet v. Daniel Clark et al., 9 Cranch, 292 (1815).
ï~~UNCONSTITUTIONALITY OF LAWS.
221
It was only after a most cautious examination, however,
that such results were reached. The language of the Court
was solemn and dignified; no trace of passion or vindictive
heat is discernible:
"The question whether a law be void for its repugnance 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 imposes. But it is not on slight implication and 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 Constitution and the law should be such that the Judge feels
a clear and strong conviction of their incompatibility with each other." 1
In the case of a corporation suing as plaintiff, it was
held that a corporation aggregate, composed of citizens of one
State, might sue a citizen of another State in the Federal
Courts; but where the jurisdiction depended, not on the character of the parties, but upon the nature of the case, the
Judiciary Act could confer no jurisdiction on the Circuit
Courts except where a controversy arose between citizens of
the same State claiming lands under grants from different
States.2 It was also determined that, though the appellate
powers of the Supreme Court had been given by the Constitution, yet they were limited and regulated by the Acts of
Congress.3 While adjusting the relations of Federal and State
tribunals, it was held that a Court of the United States could
not enjoin proceedings in a State Court,4 nor had a State
1 Fletcher v. Peck, 6 Cranch, 87 (181io).
The Bank of the Upited States v. Deveaux, 5 Cranch, 62 (18o9).
3 Durousseau and others v. The United States, 6 Cranch, 308 (18io).
4 Diggs & Keith v. Wolcott, 4 Cranch, I79 (18o7).
ï~~222 THE SUPREME COURT OF THE UNITED STATES.
Court jurisdiction to enjoin a judgment of the Circuit Court
of the United States,' nor could a State tribunal interfere, by
process of replevin, injunction or otherwise, with a seizure of
property made by revenue officers under the laws of the
United States.2
Another most important matter of jurisdiction was settled
at this time, although long settled, as Judge Johnson said, in
public opinion. It was held that the Courts of the United
States could not exercise a Common law jurisdiction in criminal cases,-a doctrine in striking opposition to the views of
Jay and his Associates.'
The law of Prize and Admiralty Jurisdiction now began
to assume shape and prominence. The slender body of decisions pronounced by the early judges of the Court could
scarcely be said to constitute a system. This branch of the
law was then in its infancy; but the non-intercourse and embargo acts and the War of 1812 created a new class of cases,
which called for the establishment of general principles. The
conflicting rights of captors, of neutrals and belligerents, trading under licenses or privateering under letters of marque
and reprisal, were to be adjusted.4 One of the most important of the earliest decisions of Marshall was that of Rose v.
Himely,5 which involved the question whether the Courts of
this country could examine into the authority of a foreign
tribunal acting as a prize court, and disregard its sentence of
condemnation, and if so, whether such sentence of a foreign
tribunal is valid, when the vessel at the time was actually
1 McKim v. Voorhies, 7 Cranch, 279 (1812).
t Slocum v. Mayberry, 2 Wheaton, (1817).
s The United States v. Hudson & Goodwin, 7 Cranch, 32 (1812). See early
cases, ante, p. 166.
* See "Life and Letters of Joseph Story," Vol. I, pp. 226-227.
S4 Cranch, 241 (18o8).
ï~~SENTENCES OF FOREIGN CO UR 7'S.
228
lying in an American port. Several cases depended upon
this decision, and they were all elaborately argued by the
most eminent practitioners of the day, Charles Lee, Robert
G. Harper, A. J. Dallas, William Rawle, Jared Ingersoll, P.
S. Duponceau, Edward Tilghman and Luther Martin, the latter speaking for three days, until the spectators, as we are
assured by Judge Story, then present as a visitor, were
"fatigued almost to death."' The decision was pronounced
by the Chief Justice-clear, luminous, argumentative, pointed
and brief-affirming the right, upon principle, to examine
into the jurisdiction of the foreign tribunal, and disregard its
sentence, if inconsistent with the law of nations. As in the
case at bar the captured vessel had not been carried within
the jurisdiction of the French Court at St. Domingo, the
sentence of that tribunal was held invalid. The majority of
the Court concurred in holding that, though the rights of
war might be exercised by a country on the high seas, yet
that the legislation of every country being territorial, its
rights of sovereignty in the execution of a mere municipal
law must be exercised within its own territory, and therefore
that the seizure of a vessel not belonging to a subject, made
on the high seas, for the breach of a municipal regulation,
was an act which the sovereign could not authorize, and such
seizure was invalid. To this last proposition Justices Livingston, Cushing and Chase did not accede. The question occurred again in Hudson v. Guestier,2 and the Court, through
1 The mode of arguing cases in the Supreme Court at that day was excessively
tedious and prolix. The two-hour rule was not then in force. Long chancery bills,
with overloaded documents, and long common law records, with scores of bills of
exceptions attached to them, crowded the docket. Speeches consumed several days,
and sometimes a week, on each side. See "Life and Letters of Joseph Story,"
Vol. I, p. 217. Van Santvoord's "Lives of the Chief-Justices," p. 384.
2 6 Cranch, 281 (I8io).
ï~~224 THE SUPREME COURT OF THE UNITED STATES.
Mr. Justice Livingston, the Chief Justice dissenting, overruled
the doctrine. In the later case of Williams and others v.
Armroyd,' it was said to be settled that the sentence of a competent court proceeding in rem is conclusive with respect to
the thing itself. No Court of co-ordinate jurisdiction can examine the sentence; and though a foreign tribunal should
condemn American neutral property under an edict unjust in
itself, contrary to the law of nations, and in violation of neutral rights, as declared by the Executive and Legislative authority of the United States, yet the Courts of this country
cannot lend their aid to the owner to recover such property,
because they cannot revise, correct, or even examine the sentence of the foreign tribunal.
The Exchange,2 an American merchantman, had been captured by a French vessel, under one of the decrees of Napoleon. Having been armed and commissioned in the French
service, she was sent with despatches to the East Indies and
put into the port of Philadelphia in distress, where she was
proceeded against by the American owners. The French
minister claimed that as she was a French national vessel
she was not amenable to judicial process. It was held that
her original ownership had been changed by her capture;
that her nationality had been duly changed, and having
entered an American port from necessity, where she had
demeaned herself in a friendly way, she was entitled to be
treated in the same manner as any other public armed vessel
of the French Emperor, with whom we were at peace, and therefore was exempt from the jurisdiction of the United States.
The celebrated case of the Nereide3 came before the Court
17 Cranch, 423 (1813).
2 The schooner Exchange v. McFadden and others, 7 Cranch, 116 (1812).
S9 Cranch, 389 (1815).
ï~~THE NEREID E.
225
in 1815. The claimant, Mr. Pinto, a merchant and native of
Buenos Ayres, being in London, had chartered the vessel,
which had been armed and commissioned by Great Britain,
to carry his own goods and the property of his family to his
home. He took passage on the vessel, which sailed under
British convoy, and having been separated from the squadron,
was captured off the island of Madeira, after a short action,
by an American privateer. The claim had been rejected in
the District Court, and the goods condemned upon the ground
that they were captured on board of an armed enemy's vessel, which had resisted the exercise of the right of search.
The case was argued in the Supreme Court with the most
extraordinary eloquence, particularly on the part of Mr. Pinkney, whose dazzling rhetoric, although unsuccessful, so heated
the calm mind of Marshall as to lead him to express himself
in the following exalted strain:
"The Nereide was armed, governed and conducted by belligerents.
With her force or her conduct the neutral shippers had no concern;
they deposited their goods on board the vessel, and stipulated for their
direct transportation to Buenos Ayres. It is true, that on her passage
she had a right to defend herself, and might have captured an assailing
vessel; but to search for the enemy would have been a violation of the
charter party and of her duty. With a pencil dipped in the most vivid
colors, and guided by the hand of a master, a splendid portrait has
been drawn, exhibiting this vessel and her freighter as forming a single
figure, composed of the most discordant materials, of Peace and War. So
exquisite was the skill of the artist, so dazzling the garb in which the
figure was presented, that it required the exercise of that cold, investigating faculty, which ought always to belong to those who sit on this
bench, to discover its only imperfection,-its want of resemblance. The
Nereide has not that Centaur-like appearance which has been ascribed to
her. She does not rove over the ocean hurling the thunders of war
while sheltered by the olive-branch of peace. She is not composed in
part of the neutral character of Mr. Pinto, and in part of the hostile
15
ï~~226 THE SUPREME COURT OF THE UNITED STATES.
character of her owner. She is an open and declared belligerent; claiming all the rights and subject to all the dangers of the belligerent character. She conveys neutral property which does not engage in her warlike equipments, or in any employment she may make of them; which
is put on board solely for the purpose of transportation, and which encounters the hazard... of being taken into port, and obliged to
seek another.conveyance, should its carrier be captured. In this, it is
the opinion of the majority of the Court, there is nothing unlawful.
The characters of the vessel and cargo remain as distinct in this as in
any other case."
From this conclusion Justices Story and Livingston dissented, the former, a master of prize law, delivering a very able,
and, as has been thought by many, a very conclusive opinion. In a letter to a friend, written at the time, he remarks
that never in his whole life was he more thoroughly satisfied
that the judgment of the Court was wrong. In the case of
the Atalanta' the same point was raised, and again argued, but
the Court refused to reverse its doctrine, observing that the
rule was correct-that enemy bottoms did not make enemy
goods-and was the most liberal and honorable to the jurisprudence of this country. About the same time Sir Wni. Scott
in the English High Court of Admiralty, held that though
neutral property on board a merchant vessel of a belligerent
was protected, yet if placed on an armed belligerent ship, it
would be liable, on sound and just principles, to condemnation with the captured vessel.2
Another class of cases, few in number, arose, represented
by United States v. Crosby,' by which it was decided that the
title to land can be acquired and lost only in the manner
prescribed by the law of the place where it is situated. In
13 Wheaton, 409 (1818).
2 Case of the Fanny, I Dodson's Adm. Report, 443 (1814)
3 7 Cranch, 115 (1812).
ï~~1
ï~~'c
ï~~WILLIAM JOHNSON.
227
Green v. Liter,1 which is interesting as a legal fossil, like the
tooth of a mastodon in a hillside, it was held in an elaborate
opinion by Story that whenever there exists a union of title
and seisin in deed, either by actual entry and livery of seisin, or by intendment of law, as by conveyance under the
Statute of Uses, the esplees are knit to the title, so as to
enable the party to maintain a writ of right.
The cases just reviewed cover the period between Marshall's appearance on the bench in i8o1 and 1815. During
this time several changes had taken place in the personnel of
the Court. Mr. Justice Moore had resigned, owing to ill
health, and William Johnson, of South Carolina, was commissioned as his successor on the 26th of March, 1804.
Mr. Justice Johnson was born in Charleston, S. C., on the
27th of December, 1771. His father, who bore the same
name, had removed from New York, and, according to Christopher Gadsden, was the first to set the ball of Revolution
rolling in his adopted State. The family, though originally
English, had removed to Holland after 166o, and some of its
members, under the name of Jansen, settled in New Amsterdam. The future Justice was educated at Princeton and
graduated in 1790, at the early age of nineteen with the
highest honors of his class. He chose the law as his profession, and pursued his studies under the direction of Charles
Cotesworth Pinckney. He was admitted to the bar in 1793,
and soon rose to eminence. He was thrice elected to the
Legislature of his native State, and during his last term
served as Speaker of the House of Representatives. In a
short time he became a judge of the Court of Common Pleas,
and while in this position at the age of thirty-three was ap18 Cranch, 229 (1814).
ï~~228 THE SUPR E ME COUR T OF THE UNITED STATES.
pointed by Jefferson to the bench of the Supreme Court. His
judicial service covered a period of thirty years. With
Washington and Story he sat beside Marshall during the
greater part of the latter's long term as Chief Justice. He
had a strong mathematical head and considerable soundness
of erudition, reminding Story of Jefferson's Attorney-General,
Levi Lincoln, although with "less of metaphysics and more
of logic." His tastes were quiet and unpretentious. His
scholarship was marked, but his opinions vary much in character. Some of them, as his dissenting opinions in Bollman
and Swartwout, and Fletcher and Peck, are strong and able,
the latter containing the germ of that spirit of dissatisfaction with the doctrines of the Dartmouth College case which
afterwards became common. Others are confused and wanting in exactness and precision, and indicate, as Mr. Shirley
has observed, that the writer was unable to put his opinions
on grounds satisfactory to himself. His legal instincts outran his powers of expression. Although originally an ardent
supporter of Jefferson, he became involved in 18o8 in a
discussion with the Administration over his conduct as a
Judge at Circuit. The collector of the port of Charleston,
under the authority of the Embargo Act, and the direct instructions of the President, had refused clearances to several
vessels, and on a motion for a mandamus, which was granted,
the Judge undertook to comment on the illegality of the instructions. The matter was referred to Caesar A. Rodney,
then Attorney-General of the United States, who bitterly
assailed the Judge, and warmly contended for the independence of the Executive. The Judge was provoked into a heated
reply, which was widely published. His tendency upon Constitutional questions was that of mild Federalism; he rarely
approved of the strong national views of Marshall, and shrunk
ï~~BROCKHOLST LIVINGSTON.
229
from the extreme views of Story. He stoutly resisted the extension of the admiralty jurisdiction so ably maintained and
carried forward by the latter. But in the days.of nullification, finding his sympathies strongly arrayed against those
of a majority of his fellow-citizens, and believing that his judicial position required him to be nettral, he removed to Pennsylvania. In 1822 he attempted authorship and published the
" Life and Correspondence of General Nathaniel Greene," in
which he made an unfortunate attack upon the memory of
James Wilson, an Associate Justice of the Supreme Court,
charging him with complicity in the Conway Cabal for the
removal of Washington and the substitution of Gates as
Commander of the Army. The charge was completely disproved by papers in the possession of Judge Peters, of the
United States District Court for Pennsylvania, and the venerable Bishop White,1 and a public retraction was promptly
made. He was the first to break in upon the practice, followed for many years, of permitting the Chief Justice to act
as the organ of the Court, and restored the ancient habit of
seriatim opinions, wherever there was any marked difference
of judgment. The old system had given great dissatisfaction,
as owing to the age and infirmities of Chase and Cushing,
and the frequent absences of Todd, two judges sometimes
practically became a majority of six, and three a majority of
seven.2
Mr. Justice Paterson died on the 9th of September, 18o6,
after a service of more than thirteen years, and on the ioth
of November of the same year, Brockholst Livingston was
commissioned in the recess, and recommissioned upon confirmation by the Senate on the 16th of January, 1807. He was
1 Wilson Papers in Library of the Historical Society of Pennsylvania.
2John M. Shirley, '" The Dartmouth College Cases," p. 311.
ï~~230 THE SUPREME COURT OF THE UNITE D STATES.
the son of Governor William Livingston, of New Jersey, and
the brother of Robert R. Livingston, the Chancellor of
New York, who administered the oath of office to George
Washington as the First President of the United States. He
was also the brother of Edward Livingston, the firm friend
and famous Secretary of State of Andrew Jackson, and was
the brother-in-law of John Jay. He was born in New York
on the 25th of November, 1757, and was educated at Princeton, but before taking his degree joined the staff of General
Schuyler in 1776. He attached himself subsequently to the
suite of Arnold, with the rank of major, and shared in the
capture of Burgoyne. He was promoted for good conduct to
a colonelcy, but in I779 abandoned military pursuits to accompany John Jay to Spain as private Secretary. On his
return home he was captured by a British vessel and was
thrown into prison, but secured his release upon the arrival
of Sir Guy Carleton. In 1782 he devoted himself to the study
of law under Peter Yates at Albany, and was admitted to the
bar in the following year. He acquired a large practice and
his name appears frequently in the earlier New York Reports.
In 1802 he was appointed a puisne Judge of the Supreme
Court of New York, of which Morgan Lewis was then Chief
Justice, and Smith Thompson, James Kent and Ratcliffe
puisnes. This place he held until his elevation to the Supreme Court of the United States. As a scholar he was intensely interested in historical studies, and was one of the first
Vice-Presidents of the New York Historical Society. He was
prominent also as one of the organizers of the public school
system of New York. He had, said Story, "a fine Roman
face; an aquiline nose, high forehead, bald head and projecting chin, indicating deep research, strength and quickness of
mind."... "He evidently thinks with great solidity and seizes
ï~~s
ï~~
ï~~THOMAS TODD.
231
on the strong points of argument. He is luminous, decisive,
earnest and impressive on the bench." As a judge he was
candid and modest, learned, acute and discriminating. He
devoted himself principally to maritime and commercial law,
and his judgments were enhanced in value by the gravity and
beauty of his judicial eloquence.
On the 24th of February, 1807, Congress authorized the
appointment of an additional Associate Justice of the Supreme
Court, to reside in the seventh Circuit, which was established
for the Districts of Kentucky, Tennessee and Ohio. The
Supreme Court was thus made to consist of a Chief Justice
and six Associates. This act was in answer to the demands
of the increasing business and population of the Western
States, and the necessity of bringing to the deliberations of
the Supreme Court some one well versed in the peculiar land
laws of that vast region.
Thomas Todd, of Kentucky,' was duly nominated and
confirmed for the place thus created, his commission being
dated March 3, 1807. It is said that Jefferson, in making
this selection, requested each member of Congress from the
States composing the Circuit to communicate to him a nomination of their first and second choice. As the name of Todd
appeared in every list he secured the appointment, although
personally unknown to many of his supporters. He was
born in Virginia, in King and Queen County, on the 23d of
January, 1765. He lost his parents at a very early age, but
was kindly provided for by his guardian, who afforded him
an opportunity of acquiring a good English education with a
little knowledge of the classics. While he was still a boy
his guardian became embarrassed and he was thrown upon
' For much of the material relating to Judge Todd I am indebted to the Hon.
H. I. Todd, of Frankfort, Ky.
ï~~282 THE SUPREME COURT OF THE UNITED STATES.
his own resources. During the closing days of the war of
the Revolution he was in the army, but upon receiving an
invitation to become an inmate of the household of Hon.
Henry Innes, a relative, he acquired a knowledge of surveying and book-keeping, and was remarkable for his accurate
and methodical detail. In 1783 Judge Innes removed to
Kentucky, and young Todd accompanied him, teaching the
daughters of his friend by day, and prosecuting, at night,
the study of the law by the light of the fire. He was soon
admitted to practice and made his first effort at Madison old
Court-House. His slender outfit at the beginning of the term
consisted of his horse and saddle and thirty-seven and a half
cents in money, but when the Court rose he had enough to
meet his current expenses, and returned home with the bonds
for two cows and calves, the usual fees of that day. From
1792 to 18o1 he served as Clerk of the House of Representatives, and for a time was Clerk of the Federal Court for
the District of Kentucky. On the erection of the State Government he was chosen Clerk of the Court of Appeals. In
I8o1 he was appointed one of the Judges of that Court, and
in 18o6, on the resignation of Judge Muter, became Chief
Justice. He laid the foundation of the land laws of his
State, and his perfect familiarity with questions of this character gave him a controlling influence with his brethren of
the Supreme Court of the United States when considering
claims such as that of The Holland Land Company. At the
time of his appointment to the Supreme Court he was fortytwo years of age. Patient and candid in investigation, clear
and sagacious in judgment, with a just respect for authority,
and at the same time, with well-settled views of his own as
to the law; never affecting to possess that which he did not
know, but with learning of a solid and useful cast, diffident
ï~~I
ï~~
ï~~
ï~~9
ï~~GABRIEL DUVALL.
233
and retiring in his habits, attentive to arguments, he won, says
Mr. Justice Story, the enviable respect of his associates. Although bred in a different political school from that of Chief
Justice Marshall, he steadfastly supported his Constitutional
doctrines, and was warmly attached to the Union of the States.
During the latter part of the year 18Io the venerable
Associate Justices Chase and Cushing died. The place of the
former was filled by Gabriel Duvall, of Maryland, and that of
the latter by Joseph Story, of Massachusetts, their commissions being dated November 18, 1811. The place filled by
Story had been offered in turn to Levi Lincoln and John
Quincy Adams, both of Massachusetts. Commissions were
regularly issued to both-on the 7th and 22d of January,
1811i, respectively, but both had declined the post; one because
of approaching blindness, the other because he preferred the
Russian mission.
Gabriel Duvall was born in Prince George County, Maryland, on the 6th of December, 1752, and after receiving a
classical education studied law, was admitted to the bar and
soon became interested in political life. For many years he
was clerk of the Maryland Legislature. He took no active part
in public affairs during the Revolution, and his name, though
well known and always respected, does not occur prominently.
In fact he dwindles by the side of Chase, the mighty propugnator. Although chosen as a member of the Federal Convention, for some reason he wholly ignored his appointment, and
thus stripped himself by inaction of a claim which might
have been his; to share in the glory which belongs to the
framers of the Constitution of the United States. He was
elected to the Congress of the United States in November,
1794, to fill a vacancy, and was re-elected, serving until March,
1796, when he resigned to take his place upon the bench of
ï~~234 THE SUPREME COURT OF THE UNITED STATES.
the Supreme Court of Maryland. In December, 1802, he was
appointed Comptroller of the Currency and held the office until
the I8th of November, 18 i, when he was appointed by President Madison an Associate Justice of the Supreme Court.
His opinions as a Judge are not characterized by either remarkable learning or great reasoning powers, but are respectable. He was the only dissentient in the Dartmouth College
case. Owing to the infirmity of deafness he was compelled to
resign his place in 1836.
Joseph Story, "the Lope de Vega or the Walter Scott of
the Common Law," to whose vast professional labors even
those of Coke and Eldon must yield in extent, whose name
was as well known in Westminster Hall and in the Judicatories of Paris and Berlin as in the Courts of the United
States, was one of the brightest ornaments of his profession
and his age. Whatever judgment posterity may pass upon
the value of his work as an author, it is certain that his
labors at the side of Marshall in developing and expanding
the principles of our national jurisprudence entitle him to the
ceaseless gratitude of his countrymen. As a logician and a
Constitutional judge he must yield to Marshall, whom he far
surpassed in general legal scholarship, but as the rival of
Stowell in admiralty and the peer of Kent in equity jurisprudence, as the sleepless and persistent force that urged
others to the amendment and enlargement of our national
code, as the Commentator upon the Constitution, as a teacher
and law lecturer without an equal, as a judge urbane and
benign, and as a man of spotless purity, he wrought so long,
so indefatigably, and so well that he did more, perhaps, than
any other man who ever sat upon the Supreme Bench to
popularize the doctrines of that great tribunal and impress
their importance and grandeur upon the public mind.
ï~~
ï~~
ï~~JOSEPH STORY.
235
He was born at Marblehead, in the county of Essex,
Massachusetts, on the I8th of September, 1779. His father,
Elisha Story, was a native of Boston, and a sturdy Whig
who had taken a very early and active part in all the Revolutionary movements, and who was one of the Indians who
helped to destroy the tea in the famous Boston exploit. His
mother, Mehitable Pedrick, was a woman of ardent temperament and admirable tact and method. After displaying some
diligence at school and a disposition to scribble verses, young
Story entered Harvard College, from which he graduated in
1798. Upon leaving Cambridge he immediately entered upon
the study of the law in the office of Mr. Samuel Sewall, then
a distinguished advocate at the Essex bar, a member of Congress, and afterwards Chief Justice of the Supreme Court of
Massachusetts. For a time he dallied with the Muses, and
seems to have left them with regret for the hard and forbidding features of the Common law. In 18oi he removed to
Salem, and read with Judge Putnam, and in July was admitted
to the Bar. At this time he was the only lawyer in his
neighborhood who was either openly or secretly a Democrat.
He found himself surrounded by Federalists, and encountered
many discouraging obstacles to success. His industry and his
exclusive devotion to his profession brought him clients and
in the course of three or four years he could boast of a good
business and an increasing reputation. In 1803 he declined
the post of naval officer at the port of Salem, being persuaded
that it would interfere with his prospects. In 1805 he was
chosen a member of the Legislature, and supported several important measures with marked ability. Three years afterwards
he was sent to Congress, and during his brief term of service
distinguished himself in urging the repeal of the embargo and
the augmentation of the navy. Declining re-election, he was
ï~~286 THE SUPREME COURT OF THE UNITED STA TES.
again chosen a member of the Legislature, and became Speaker
of the House. His professional ability now won recognition,
and in i8io he argued before the Supreme Court of the
United States the great case of the Georgia claim known as
Fletcher v. Peck. About this time he edited a new edition of
Chitty on Bills of Exchange and Promissory Notes, an American edition of Abbott on Shipping, and Lawes on Assumpsit.
On the 18th of November, 1811I, he was commissioned as an
Associate Justice of the Supreme Court of the United States
to fill the vacancy created by the death of Mr. Justice Cushing,
who had occupied the place since the organization of the
government. The appointment was a surprise, made, it seems,
at the suggestion of Mr. Bacon, a member of Congress from
Massachusetts. As the annual salary was then but three
thousand five hundred dollars, its acceptance involved no
slight pecuniary sacrifice. The opportunity of pursuing juridical studies, the high honor of the place, the permanence of
the tenure, and the prospect of meeting the great men of the
nation, were considerations which he could not resist.
Story was then but thirty-two years of age-the youngest judge, except Mr. Justice Buller, who was ever called to
the highest judicial station either in England or America.
His labors upon Circuit were onerous indeed, owing to the immense accumulation of business in consequence of the age
and infirmities of his predecessor. The commercial and maritime interests of the New England States, and the large proportion of capital invested in shipping generated curious questions of admiralty law, respecting the rights, duties and liabilities of ship owners, mariners and material men, while controversies involving salvage and insurance arose from cases of
wreck and loss upon those bleak and dangerous shores. In
this way the attention of Judge Story was directed, at the
ï~~STORY'S EXTRAORDINARY ACTIVITY.
237
very outset of his judicial career, to questions of this character. He made himself a thorough master of this branch of
jurisprudence as well as of Prize and Instance Law. From
this day his labors in every field of legal science were tireless and unremitting. He soon interested himself in the reform of the criminal code of the United States, and sent to
Mr. Pinkney sketches of improvements. He denounced the
existing code as grossly and barbarously defective; the courts
were crippled, and offenders, conspirators, and traitors were
enabled to carry on their purposes almost without check. He
begged his friends to induce Congress to give the Courts of
the United States power to punish all crimes and offences
against the Government, as at Common law. He pleaded for
the extension of the national authority over the whole extent
of power given by the Constitution; for great military and
naval schools; an adequate regular army; a permanent navy;
a national bank; a national system of bankruptcy; a great
navigation act; a general survey of all our ports, and appointments of port wardens and pilots; courts which should embrace
the whole Constitutional powers; national notaries; public and
national justices of the peace, for the commercial and national
concerns of the United States. By such enlarged and liberal
institutions, he argued, the Government of the United States
would become endeared to the people, and the factions of the
great States be rendered harmless. The possibility of a division would be prevented by creating great national interests
which would bind us in an indissoluble chain. He delivered
eulogies, and historical and literary addresses; published several volumes of reports of his decisions at Circuit; drafted a
Bankrupt law, the Crimes Act, a Judiciary Act, and wrote for
the use of a friend in Congress an argumentative comment
thereon. He wrote elaborate notes for Mr. Wheaton: "On the
ï~~238 THE SUPREME COURT OF THE UNITED STATES.
Principles and Practice of Prize Courts," "On Charitable Bequests," "On the Patent Laws," " On Piracies," " On the Admiralty Jurisdiction," "On the Rule of 1756," and prepared a
large portion of a Digest. He edited an edition of the Laws
of the United States, contributed articles to "The American
Jurist," reviewed books and professional treatises, corresponded
with Lord Stowell, Lord Eldon, Sir James Mackintosh, Chancellor Kent, and most of the public mnien of his day; published
verses; founded a Law School; surrendered his library to
Harvard; lectured upon Equity, Equity Pleading, Commercial
and Constitutional law; published treatises upon a dozen different subjects, which have become standard authorities in
England as well as in this country; wrote the ablest
work extant on the " Conflict of Laws;" declined the Chief
Justiceship of Massachusetts, and at the same time did his
fair share of the labors of the Supreme Court, as attested by
more than thirty-five volumes of Reports. His mental activity
was ceaseless, and as a Judge, author and teacher of Jurisprudence, he exercised in each of these characters a peculiar influence. He became a jurist of world-wide reputation, and the
echoes of his fame returned to his native shores from those of
England, France, Germany, Italy, Russia and Spain. As
familiar with Justinian as with Coke, he swept the bounds of
jurisprudence with comprehensive glance, and poured forth the
rich accumulations of his industry with flowing pen. His
position in legal literature is unique, and the impression he
made upon his contemporaries was profound. Yet it may be
doubted whether his reputation will stand the test of time.
"His power of synthesis," writes a most competent critic, "was
considerable; but when you have heard his opinions and text
books dissected by analytical men at the bar as often as I
have, you will come to the conclusion that his mind was de
ï~~THE BAR OF THE SUPREME COURT.
239
ficient in accuracy, that its discipline was not strict, nor its
investigations patient. His reputation, which was in a good
degree a reflected one from England, where he took great
pains to make himself known, has not, I think, stood firm in
the professional mind to this day. And I much doubt whether
he had any accurate knowledge of the Civil law." 1 Another
writer says: "Whole chapters of some of his books seem to
be little more than windrows of head notes, raked together as
the farmer rakes his hay in the mow field; but when we survey the ground, the wonder is, not that they contain so many
imperfections, but that his work was so well performed. His
opinions will probably stand higher in the hereafter than his
text books, except his works on 'The Conflict of Laws' and
the ' Constitution.' " 2
A glance at the bar of the Supreme Court may be
permitted. The earliest sessions of the Court had been
held in an upper room in the Exchange, New York. No
arguments were made there; but on the removal of the
seat of Government to Philadelphia, where the Court sat
for ten years-from 1791 to I8oI-its sessions were held
in the South Chamber, up-stairs, of the City Hall, at the
corner of Fifth and Chestnut Streets.3 Here Edmund Randolph, William Bradford and Charles Lee appeared as Attorney-Generals of the United States, with Alexander Hamilton,
John Marshall, Alexander Campbell, James Innes, John
Wickham and Thomas Swann as opponents, and all the active practitioners of the Philadelphia Bar. When the Court
1 Letter of John William Wallace, Esq., Reporter of the Supreme Court of the
United States, to the writer, January 31st, 1876.
2 John M. Shirley, "Dartmouth College Causes," p. 330.
Discourse of John Win. Wallace, Esq., before the Historical Society of Pennsylvania, 1872.
ï~~240 THE SUPREME COURT OF THE UNITED STATES.
removed to Washington, the leaders of the old Bar of Philadelphia followed, and maintained their ascendancy: the eloquent Dallas, the accomplished Rawle, the rough and rugged
Lewis; the elder Tilghman and the elder Ingersoll,-the former, strong, pointed and logical; the latter, a perfect dragnet in the law. "My bar," as Judge Washington affectionately called them, as they entered the room in a body, after
four days of tedious and dangerous riding in the middle of
February, over rough roads.
We catch delightful glimpses of the olden days and vanished states of society in the reminiscences of Peter S. Duponceau, himself one of that famous band, as he describes
how they all went down together to argue the causes arising
out of the British Orders in Council and the Berlin and Milan decrees; how these grave counsellors, as soon as they
were out of the city and felt the flush of air, acted like
schoolboys on a holiday; how flashes of wit shot their coruscations on all sides; how puns of the genuine Philadelphia
stamp were bandied about, and old college stories were revived; how macaronic Latin was spoken, and songs were
sung, among which was the famous Bacchanalian of the
archdeacon of Oxford: Mihi est proposzitum zin taberna mori.'
In Washington they met Charles Lee, "whom no one would
suspect of having been Attorney-General;" Harper, graceful
and flowing, though somewhat artificial; Key, Swann and
Martin, of Maryland-" that singular compound of strange
qualities, whom you should hear of, but should not see,"
Jeremiah Mason, and John Quincy Adams, rugged and strong,
and Dexter, relying upon the deliberate suggestions of his
own mind, and finding himself supported by the authority of
1P. S. Duponceau, "A Memoir of William Rawle." Memoirs of the Historical
Society of Pennsylvania, Vol. IV., p. 95.
ï~~THE COURT ROOM. 2
241
Mansfield when he least suspected it. A younger generation
soon succeeded, and in the room which now serves as the
law library of Congress-a basement chamber approached by
a small hall, having an eastern door of entrance from the
grounds of the Capitol, flanked by pillars of novel design of
Indian-corn stalks with ears half open at the top,-a room
spared by the conflagration kindled in 1814 by British soldiers,-sat the most august tribunal of the land hearing solemn argument. In "this cave of Trophonius," as John Randolph spitefully called it, John Marshall sat for thirty-four
years, in the midst of six Associates, listening to the most
profound and brilliant arguments from Pinkney, foppish, vehement, overwhelming, but always well prepared; Wirt, florid
and classical, but of considerable legal attainments; Emmett,
the interesting exile; Binney, the consummate lawyer; Clay,
dashing and magnetic, and Webster, inspiring and profound.
Such are the associations of this unimposing chamber; and
while wandering beneath its solemn arches, and recalling the
mighty figures of the heroic past who there labored for the
establishment of a national Constitutional government, the
visitor cannot fail to yield to emotions of awe, while in the
holiest, but now abandoned sanctuary of Justice, upon whose
altars once burned "the gladsome light of jurisprudence."
16
ï~~242 THE SUPREME COURT OF THE UNITED STATES.
CHAPTER XIV.
THE THIRD EPOCH: 1816-1835: THE LATTER HALF OF MARSHALL'S CAREER: THE
GOLDEN AGE OF THE SUPREME COURT: APPELLATE JURISDICTION OF THE SuPREME COURT UNDER THE 25TH SECTION OF THE JUDICIARY ACT: MARTIN
V. HUNTER'S LESSEE: COHENS V. STATE OF VIRGINIA: THE TERM OF 1819:
M'CULLOCH V. STATE OF MARYLAND: TRUSTEES OF DARTMOUTH COLLEGE V.
WOODWARD: STURGES V. CROWNINSHIELD: OSBORN V. BANK OF THE UNITED
STATES: POWER OF CONGRESS TO REGULATE COMMERCE: GIBBONS V. OGDEN:
WILSON V. BLACKBIRD CREEK MARSH CO: BROWN v. STATE OF MARYLAND:
CONSTITUTIONAL RESTRICTIONS UPON THE POWERS OF THE STATES: CRAIG V.
STATE OF MISSOURI: POSITION AND INFLUENCE OF THE SUPREME COURT:
RIGHTS OF THE STATES: PROVIDENCE BANK Zv. BILLINGS: BARRON V. MAYOR
OF BALTIMORE: POWERS OF STATES TO PASS BANKRUPT LAWS: OGDEN V.
SAUNDERS: BOYLE v. ZACHARIE: 4HAT CONSTITUTES A STATE: CHEROKEE
NATION V. STATE OF GEORGIA: WORCESTER V. STATE OF GEORGIA: LAST
CONSTITUTIONAL DECISION OF MARSHALL: PRINCIPLES OF CONSTITUTIONAL INTERPRETATION: SKETCHES OF JUSTICES THOMPSON, TRIMBLE, MCLEAN, BALDWIN AND WAYNE: GENERAL REVIEW OF THE WORK ACCOMPLISHED BY THE
SUPREME COURT UNDER MARSHALL.
IN the last chapter we reached a period which marks the
termination of the first half of Marshall's judicial career.
Beneath the strong and steady rays cast by his mind
the mists were rising, and the bold outlines of our national
system were gradually revealed. To keen eyes the destination of the Ship of State was visible, although from most
men still concealed by haze. Greater questions than any yet
determined were to be met. The decisive battle for national
sovereignty was still to be fought. The true method of interpreting the Constitution was still unsettled. Whether the
right of Congress to pass all laws "necessary and proper" for
the Federal government was not restricted to such as were
indispensable to that end; whether the right of taxation could
I
ï~~THE EMPIRE OF JURISPR UDENCE.
243
be exercised by a State against creations of the Federal Government; whether a Federal Court could revise the judgment
of a State Court in a case arising under the Constitution and
laws of the United States; whether the officers of the Federal
Government could be protected against State interference;
how far a State could impair the obligation of a charter;
how far extended the power of Congress to regulate commerce
among the States; how far to regulate foreign commerce as
against State enactment; how far extended the prohibition to
States against emitting bills of credit-these and like questions were awaiting consideration by the master mind. In
this wide realm he was to be crowned as sovereign. And for
the Court, there lay before it the universal empire of jurisprudence; the ancient and subtle learning of the law of real
estate; the criminal law; the niceties of special pleading; the
refined doctrines of contracts; the enlightened system of commercial and maritime law; the principles and practice of
admiralty and prize; the immense range of chancery; the
ever spreading bounds of jurisdiction over patents, copyrights
and trademarks; and that higher region, rising into noble
eminences, from which wide views could be obtained of the
great themes of public, international and constitutional lawthese fields though already entered upon were still to be
subdued. With Marshall, Story and Washington upon the
bench as a triumvirate, whose policy was harmonious and
steadfast; with Johnson, Livingston, Todd and Duvall as
intelligent advisers and critics; with men at the bar of the
expansive power and propulsive energy of Pinkney and Webster, roused to the noblest exertions of their genius by the
rivalry of Wirt, Emmett, Dexter and Jones, the labor of
building up our Constitutional jurisprudence and of establishing its national character was carried forward by the wisest
ï~~244 THE SUPREME COURT OF THE UNITED STATES.
heads, the most sagacious judgments and the most patriotic
hearts. In a moment of inspired prophecy, Pinkney exclaimed: "I meditate with exultation, not fear, upon the
proud spectacle of a peaceful judicial review of these conflicting sovereign claims by this more than Amphictyonic Council. I see in it a pledge of the immortality of the Union, of
a perpetuity of national strength and glory increasing and
brightening with age,-of concord at home and reputation
abroad." It was an age of great arguments at the bar,
and great opinions from the bench. There were time and
opportunity for both. The mercantile necessities of the people had not yet compelled the use by Judex of an hour-glass,
nor the substitution of citations of the latest authorities for a
discussion of principles. Dialectics might still be wedded
unto Fancy; and neither was doomed to celibacy. Every
argument was alive and in motion-the statue of Pygmalion
inspired with vitality. It was the Golden Age of the Supreme
Court.
A succession of great questions arose. In 1816 a most
important matter called for determination, presenting an instance of collision between the judicial powers of the Union,
and one of the greatest States on a point the most delicate and
difficult to be adjusted. The Constitution of the United States
had not in terms granted to the Supreme Court appellate power
over courts of the States, and although silently acquiesced in at
an early day, this jurisdiction was finally not only seriously
questioned but absolutely denied by the State of Virginia.
It required a repetition of instances, in which the Supreme
Court vindicated its authority within certain well-defined
limits, to convince the country that this power existed.1
' Curtis, "Jurisdiction of the United States Courts," pp. 26-27. See also Gelston
v. Hoyt, 3 Wheaton, 246 (i818), and Houston v. Moore, Ibid., 433 (1818), for
ï~~THE TRIUMPH OF FEDERALISM.
245
The 25th section of the Judiciary Act of 1789 had provided that"A final judgment or decree in any suit, in the highest court of law
or equity of a State in which a decision in the suit could be had, 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; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the
decision is in favor of such their validity; or where is drawn in question
the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under the United States, and the decision is
against the title, right, privilege, or exemption specially set up or claimed
by either party, under such clause of the said Constitution, treaty, statute
or commission,-may be re-examined and reversed or affirmed in the
Supreme Court of the United States upon a writ of error."1
This Act was a triumph of Federalist centralization, and
was a cession of power to the Supreme Court of more consequence to the States than the "necessary and proper" clause
itself. Its critics believed that it had been dictated by a wish
to make the State judiciaries inferior courts of the central
government, because the powers of the General Government
might be 'drawn in question' in many ways and on many
occasions. Mr. Henry Adams asserts that Chief Justice Marshall achieved one of his greatest victories by causing Justice
Story, a Republican, raised to the Bench in 1811 for the purpose of contesting his authority, to pronounce the opinion of
the Court in the case of Martin v. Hunter's Lessee,2 by which
the position of the Virginia Court of Appeals was overruled
instances of acquiescence of the States in the appellate power of the Supreme
Court under the 25th Section of the Judiciary Act.
SAct 24th of September, 1789, I United States Statutes at Large, p. 85.
2 x. Wheaton, 304 (18t6).
ï~~246 THE SUPREME COURT OF THE UNITED STATES.
upon the question of constitutionality raised by the State Court
in regard to this section of the Judiciary Act.'
The case was argued on the one side by Walter Jones,
who maintained for many years a proud pre-eminence at the
bar of the District Court of Columbia, and on the other by
Tucker, of Virginia, and Dexter, of Massachusetts; Dexter,
while conceding that he had long inclined to the belief that
the Government was not strong enough and that the centrifugal force was greater than the centripetal, asserted that he
would not strain or break the Constitution itself in order to
establish a national power. The opinion of Mr. Justice Story,
which is the first Constitutional judgment ever delivered by
him, differs from most of his opinions in the fact that it is a
closely-reasoned argument without the citation of authority.
It displays many of the peculiar merits of the best judgments
of Marshall, compactness of fibre and closeness of logic. It
develops the relations of the States to the Federal government,
and establishes that although their sovereign authority is only
impaired so far as it is ceded, yet that the Constitution does
not operate to create a mere confederation and aggregation of
separate sovereignties, but contains in itself paramount and
supreme powers surrendered by the States and the people for
the common and equal benefit of all over whom this government extends,-and that among the powers thus ceded is the
appellate jurisdiction of the Supreme Court over all cases
enumerated in the clause vesting the judicial power.
"The appellate power," said he, "is not limited by the terms of
the third article to any particular Courts. The words are,-' The
judicial power' (which includes appellate power) 'shall extend to all
cases,' etc., 'and in all other cases before mentioned, the Supreme
I See Adams's "History of the United States," Vol. I, p. 260.
ï~~THE API'PELLATE PO WER.
247
Court shall have appellate jurisdiction.' It is the case, then, and not
the Court, that gives the jurisdiction. If the judicial power extends to
the case, it will be in 'vain to search in the letter of the Constitution for
any qualification as to the tribunal where it depends. It is incumbent,
then, upon those who assert such a qualification to show its existence by
necessary implication. If the text be clear and distinct, no restriction
upon its plain and obvious import ought to be admitted, unless the inference be irresistible. If the Constitution meant to limit the appellate
jurisdiction to cases pending in the Courts of the United States, it would
necessarily follow that the jurisdiction of these Courts would, in all the
cases enumerated in the Constitution, be exclusive of State tribunals.
How otherwise could the jurisdiction extend to all cases arising under
the Constitution, laws and treaties of the United States, or to all cases
of admiralty and maritime jurisdiction? If some of these cases might be
entertained by State tribunals, and no appellate jurisdiction as to them
should exist, then the appellate power would not extend to all, but- to
some cases. If State tribunals might exercise concurrent jurisdiction
over all or some of the other class of cases in the Constitution without
control, then the appellate jurisdiction of the United States might, as to
such cases, have no real existence, contrary to the manifest intent of the
Constitution. Under such circumstances, to give effect to the judicial
power, it must be construed to be exclusive, and this not only when the
casus federis should arise directly, but when it should arise incidentally
in cases pending in State Courts."
From this reasoning Mr. Justice Johnson dissented, viewing the question as one of the most momentous importance,
and quoting with approval the language of Patrick Henry:
"I rejoice that Virginia has resisted." He concurred in the
result, however, and exerted himself most ingeniously to save
the State from any sense of humiliation.
The entire subject, though fully discussed by Mr. Justice Story, was not finally settled until the case of Cohens v.
The State of Virginia,1 in which the Supreme Court, with
1 6 Wheaton, 264 (1821).
ï~~248 THE SUPREME COURT OF THE UNITED STATES.
decisive effect, and in a manner which has always been acquiesced in by the country since that time, vindicated and
sustained its jurisdiction. A complete view of the nature of
the judicial powers of the Federal Government is to be obtained by reading, in this connection, the opinion of the
Chief Justice in the case of the Bank of Hamilton v. Dudley's
Lessees,' in which it was held that the State Courts have exclusive power to construe the Constitution and legislative acts
of their respective States. "The judicial department of every
government," said he, "is the rightful expositor of its laws,
and emphatically of its supreme law."
The term of 1819 became distinguished in the annals of
the Court not alone by the importance of the causes which
came before it relating to the general business interests of
the country, but by the occurrence of several cases of more
than ordinary gravity as connected with the political affairs
of the nation. The principles discussed were of the most
momentous character, and the decisions announced were destined to guide and control the most distant posterity. At
this time Mr. Monroe was President; the fierce heat of party
passion had cooled; it was an era of good feeling. The
Court had become the centre of observation for its august
power, dignity and public trust. It was no longer an unknown or an untried tribunal. It had become well established. Marshall had been Chief Justice for eighteen years;
Washington had been on the bench for twenty-one years,
Johnson for fifteen, Livingston and Todd for twelve, Story
and Duvall for eight; all had won for themselves and for
the court a distinctive position of eminence and influence.
Whatever determinations they might reach would carry great
1 2 Peters, 492 (1829).
ï~~M'CULLOCH v. THE STATE OF MARYLAND.
249
weight. The bar, too, had won a position of authority. Wirt
as Attorney-General, and Pinkney as an ex-Attorney-General
had now ascended to the highest levels of their professional
careers; Martin had just begun to lag superfluous on the
stage, but Jones, Hopkinson and Webster were fast approaching the zenith of their fame as advocates. Diligent study,
solid accumulations of strength, long experience, varied knowledge, a widely extended reputation for eloquence and logic,
kindled moreover by intense personal rivalry, and a cheerful
but sanguine ambition-these were sufficient to produce at the
bar arguments distinguished for perspicacity, comprehensive
and philosophic views of every subject, and the most convincing power of demonstration.
The first case to arise was that of M' Culloch v. The
State of Maryland1 involving the double question of the constitutionality of the act incorporating the Bank of the United
States, and of the power of a State to tax an agency of the
general Government.
Congress, by an Act passed in April, 1816, had incorporated the Bank of the United States, which had been originally
established under an Act of I791, but whose charter had
expired in i8 1I. A branch of this Bank was established at
Baltimore, and in 1818 the Legislature of Maryland imposed
a stamp duty on the circulating notes of all banks or
branches thereof, located in that State, not chartered by the
Legislature. The Maryland Branch refused to pay the tax,
and M'Culloch, the Cashier, was sued for it. Judgment
was recovered against him in the State Court, and he carried
it, on writ of error, to the Supreme Court. The decision of
the appellate tribunal was looked for with eager interest.
14 Wheaton, 316 (1819).
ï~~250 THE SUPREME COURT OF THE UNITED STATES.
Pinkney, Wirt and Webster appearel for the Bank, and Martin, Hopkinson and Jones for the State. "I never in my
whole life," says Judge Story, in writing of Pinkney's effort,
"heard a greater speech. It was worth a journey from Salem
to hear it. His elocution was excessively vehement, but his
eloquence was overwhelming. His language, his style, his
figures, his arguments were most brilliant and sparkling. He
spoke like a great statesman and patriot, and a sound Constitutional lawyer. All the cobwebs of sophistry and metaphysics about State rights and State sovereignty he brushed
away as with a mighty besom. " 1
It was in the course of his argument that Pinkney exclaimed: "I have a deep and awful conviction that upon that
judgment it will depend mainly whether the Constitution under
which we live and prosper is to be considered like its precursor, a mere phantom of political power, to deceive and
mock us-a pageant of mimic sovereignty calculated to raise
up hopes that it may leave them to perish-a frail and tottering edifice that can afford no shelter from storm, either foreign or domestic-a creature half made up, without heart or
brain, or nerve, or muscle,-without protecting power or redeeming energy---or whether it is to be viewed as a competent
guardian of all that is dear to us as a nation." 2
The institution of a national bank, as being of primary
importance to the prosperous administration of the finances,
and of the greatest utility in the operations connected with the
support of public credit, had been recommended originally by
Alexander Hamilton as Secretary of the Treasury. The constitutionality of the exercise of such a power had been debated
with extraordinary ability in both houses of Congress, and in
'Story's Life and Letters, Vol. I, p. 325.
2 Wheaton's "Life of Pinkney," pp. 163-166.
ï~~M'CULLOCH v. THE STATE OF MARYLAND.
251
the Executive Cabinet, where Jefferson, as Secretary of State,
and Randolph, as Attorney-General, had declared that they saw
no warrant in the language of the Constitution, even under
the clause relating to incidental powers, for such a corporation. The opposite view was maintained by Hamilton, with
overwhelming ability and ardor, and prevailed with Washington. The question, therefore, was not new to the thoughts of
the nation, and counsel at the bar availed themselves of all
that had been previously said and written upon the subject.
The opinion delivered by Marshall has always been considered as one of the most elaborate and masterly of his
efforts, and Chancellor Kent ' has said that a case could not
be selected superior to this for the clear and satisfactory manner in which the supremacy of the laws of the Union have
been maintained by the Court, and an undue assertion of
State power overruled and defeated. A close observer of Marshall's language cannot fail to remark that much is borrowed
from Hamilton. In considering the extent of the "necessary
and proper" clause in the Constitution, the Chief Justice said:
"We admit, as all must admit, that the powers of the government
are limited, and that its limits are not to be transcended; but we think
a sound construction of the Constitution 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 duties 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."
This language was in harmony with that which had been
used some years before in the case of the United States v.
1i Kent's Commentaries, 428.
ï~~252 THE SUPREME COURT OF THE UNITED STATES.
Fisker.' At the same time an expression was added of the
unwillingness of the Court to assume any power to pass upon
the expediency of the exercise of the power conferred upon
Congress.
"Where the law is not prohibited, and is really calculated to effect
any of the objects entrusted to the government, to undertake here to
inquire into the degree of its necessity would be to pass the line which
circumscribes the judicial department, and to tread upon legislative
ground. The Court disclaims all pretensions to such a power."
In dealing with the power of a State to tax an agency
of the national government, he made it clear:
"That the power to tax involves the power to destroy; that the
power to destroy may defeat and render useless the power to create...
If the States may tax one instrument employed by the Government in
the execution of its power, they may tax any and every other instrument; they may tax the mail; they may tax the mint; they may tax
patent rights; they may tax the papers of the Custom House; they may
tax judicial process; they may tax all the means employed by the Government to an excess which would defeat all the ends of government.
This was not intended by the American people. They did not design to
make the Government dependent on the States... The question is, in
truth, a question of supremacy, and if the right of the States to tax the
means employed by the General Government be conceded, the declaration that the Constitution and the laws made in pursuance thereof shall
be the supreme law of the land is empty and unmeaning declamation."
The famous case of the Trustees of Dartmouth College v.
Woodward3 also came before the Court at this term, estab12 Cranch, 358 (18o5).
2 The same conclusion was reached in Osborn v. Bank of the United States, 9
Wheaton, 738 (1824), in which the State of Ohio imposed an annual tax of $5o,00ooo
upon each office of discount and deposit maintained by that Bank in the State, and
Weston v. Charleston, 2 Peters, 449 (1829), in which a municipal tax was imposed
upon stocks of the United States owned by citizens of Charleston, S. C.
34 Wheaton, 518 (1819).
ï~~THE DARTMOUTH COLLEGE CASE.
253
lishing the inviolability of charters and their protection by
the power of the Federal Government, and is perhaps better
known to laymen, both in name and in principle, than any
other decision of the Court. The tide of national power was
rising fast, and each successive billow marked a higher line
upon the beach. Of this case, containing one of the most
celebrated of Marshall's judgments, Mr. Binney says: "If I
were to select, in any particular, from the mass of judgments
for the purpose of showing what we derived from the Constitution, and from the noble faculties which have been applied
to its interpretation, it would be that in which the protection
of chartered rights has been deduced from its provisions.
The case of Dartmouth College is the bulwark of our incorporated institutions for public education, and of those chartered endowments for diffusive public charity which are not
only the ornaments, but among the strongest defences of a
nation."' And Mr. Justice Miller has said: "It may well be
doubted whether any decision ever delivered by any Court
has had such a pervading operation and influence in controlling legislation as this. The legislation, however, so controlled, has been that of the States of the Union."2
The case has been the subject of much criticism, and
has provoked much dissatisfaction as well as praise and admiration. The actual controversy, as the Chief Justice himself remarked, turned upon the question whether the charter
of the College was a grant of political power which the State
could resume or modify at pleasure, or a contract for the
security and disposition of property bestowed in trust for
'An Eulogy on the Life and Character of John Marshall, delivered at the request of the Councils of Philadelphia, on the 24th of Sept., 1835, by Horace Binney.
2 An Address delivered before the Alumni Society of the Law Department of the
University of Michigan on the Supreme Court of United States, June 29, 1887.
ï~~254 THE SUPREME COURT OF THE UNITED STATES.
charitable purposes. It was held to be the latter, and for
that reason inviolable under Section io of Article I of the
Constitution, which declares that-"No State shall make any
law impairing the obligation of contracts."
The main stress of adverse criticism is upon the point
that the corporation existed under a charter granted by the
British Crown to its Trustees in New Hampshire in the year
1769. It was, therefore, a royal charter, and not a legislative
grant.'
The Charter conferred upon the trustees the entire governing power of the College, and among others that of filling
all vacancies occurring in their own body, and of removing and appointing tutors. It also declared that the number
of trustees should forever consist of twelve, and no more.
After the Revolution, the Legislature of New Hampshire
passed a law to amend the charter, to improve and enlarge
the corporation, to increase the number of trustees, giving
the appointment of the additional members to the Governor
of the State, and creating a Board of Overseers of twenty-five
persons, of whom twenty-one were also to be appointed by
the Governor. These overseers had power to inspect and
control the most important acts of the trustees.
The opinion, to which there was but one dissent-that of
Mr. Justice Duvall-establishes the doctrine that the act of a
government, whether it be an act of the Legislature or of the
Crown which creates a corporation, is a contract between the
State and the corporation, and that all the essential franchises, powers and benefits conferred by the charter become,
when accepted by the corporation, contracts within the meaning of the Constitutional clause.
'John M. Shirley, "The Dartmouth College Causes and the Supreme Court."
ï~~A CHARTER IS A CONTRACT.
255
"This is plainly a contract," said Marshall, " to which the donors,
the trustees and the crown (to whose rights and obligations New Hampshire succeeds) were the original parties. It is a contract for the security and disposition of property. It is a contract on the faith of which
real and personal estate has been conveyed to the corporation. It is
then a contract within the letter of the Constitution and within its
spirit also, unless the fact that the property is invested by the donors
and trustees for the promotion of religion and education, for the benefit of
persons who are perpetually changing, though the objects remain the
same, shall create a particular exception, taking this case out of the
prohibition contained in the Constitution.... On what safe and
intelligible ground can this exception stand? There is no expression
in the Constitution, no sentiment delivered by its cotemporaneous expounders which would justify us in making it. In the absence of all
authority of this kind, is there, in the nature and reason of the case
itself, that which would constrain a construction of the Constitution not
warranted by its words? Are contracts of this description of a character
to excite so little interest that we must exclude them from the provisions of the Constitution as being unworthy of the attention of those
who framed the instrument, or does public policy so imperiously demand
their remaining exposed to legislative alteration as to compel us, or
rather permit us to say that these words which were introduced to give
stability to contracts, and which in their plain import comprehend this
contract, must yet be so construed as to exclude it? "
In this reasoning Justices Washington and Story concurred in separate opinions, Justice Johnson in the reasons stated by the Chief Justice, while Justice Livingston
concurred in the reasons stated by all.
The opinion of Mr. Justice Story was one of the most
learned and able of his efforts, containing a most elaborate
and exhaustive review of English and American decisions
upon the nature of charities and of the power of visitation.
In conclusion he says:
"In my judgment it is perfectly clear that any act of a legislature
which takes away any power or franchise vested by its charter in a pri
ï~~256 THE SUPREME COURT OF THE UNITED STATES.
vate corporation, or its corporate officers, or which restrains or controls
the legitimate exercise of them, or transfers them to other persons without its assent, is a violation of the obligations of that charter. If the
Legislature mean to claim such an authority, it must be reserved in the
grant."
It is true that the Supreme Court, as will be seen, has
been compelled, of late years, to insist upon the existence of
an express contract by the State with a corporation, when
relief is sought against subsequent legislation, in order to
guard against the evils flowing from too sweeping an abdication of sovereign powers by implication. But the main feature of the case remains, and probably will remain, that a
State can make a contract by legislation, and that in such a
case no subsequent legislative act can interpose any effectual
barrier to its enforcement. The result of this principle has
been to make void innumerable acts of State Legislatures
intended, in times of disastrous financial depression and suffering, to protect the people from the hardships of a rigid
enforcement of their contracts, and to prevent States from
impairing, by legislation, contracts entered into with other
parties. The decision has stood as a great bulwark against
popular efforts, through State legislation, to avoid the payment of just debts, and the general repudiation of the rights
of creditors.
The same question recurred in Green v. Biddle,' where it
was held that the Constitutional prohibition embraced all contracts, executed or executory, between private individuals, or a
State and individuals, or corporations, or between the States
themselves, the main question being that a compact between two States was a contract entitled to protection. An
SMr. Justice Miller's Address, ut supra.
28 Wheaton, 1 (1823).
ï~~SUPREMACY OVER STATE COURTS.
257
other aspect of the same controversy was considered in the
case of Sturges v. Crowninshield,' in which the power of the
States to pass bankrupt laws was exhaustively considered, and
it was held that a State has full authority to pass such a law
until Congress has acted on the subject, provided such State
law does not impair the obligation of contracts by discharging
the debtor.
The particular act, the Constitutionality of which was
assailed in this case, was held to be void, inasmuch as it not
only liberated the person of the debtor, but discharged him from
all liability for any debt contracted previous to his discharge
upon surrender of his property, and was, therefore, held to be
a law impairing the obligation of contracts within the meaning
of the Constitutional clause. At the same time the Chief
Justice was careful to draw the distinction which exists, and
has been recognized ever since, between the obligation of a
contract and the remedy given by the Legislature, and it was
held that so long as the former exists unimpaired, the latter
may be modified as the wisdom of the Legislature shall direct.
In the great case of Cohens v. Virginia2 the Chief Justice
had an opportunity of again asserting the supremacy of the
Federal judiciary over State Courts under the 25th section of
the Judiciary Act, and of interpreting the Eleventh Amendment, which had forbidden suits against a State by citizens of
another State. The Cohens had undertaken to sell lottery
tickets in Virginia, under the authority of an Act of Congress
establishing a lottery in the District of Columbia for national
purposes. They were indicted under a State statute, making
the selling of lottery tickets an offence. They were convicted
14 Wheaton, 122 (1819). See also McMillan v. MeNeill, Ibid., 209 (1819). Farmers and Mechanics' Bank of Pennsylvania v. Smith, 6 Wheaton, 131 (1821).
26 Wheaton, 264 (1821).
17
ï~~258 THE SUPREME COURT OF THE UNITED STATES.
and fined, and the lower Court was of opinion that they had
exclusive jurisdiction of the case.
In overruling the judgment, upon the point of jurisdiction, the Chief Justice pointed out that this was not a suit
against the State of Virginia, but a prosecution by the State
to which a defence under the laws of the United States had
been set up, and that the writ of error merely removed the
record for the purpose of enabling the supreme tribunal of the
nation to re-examine the Constitutional question involved. He
impaled the argument of counsel for the State, by reducing
their propositions to manifest absurdities. Thus he said:
"They maintain that the nation does not possess a department capable of restraining peaceably 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 submitting to such
attempts or of resisting them by force. They maintain that the Constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation, but that this power
may be exercised in the last resort by the Courts of every State in the
Union. That the Constitution, laws and treaties may receive as many
constructions as there are States, and that this is not a mischief, or if a
mischief, is irremediable."
To these propositions there could be but one answer. He
sustained the conviction, however, on the ground that the Act
of Congress did not authorize a violation of the criminal laws
of the State.
In the case of Osborn v. The Bank of the United States1
the Eleventh Amendment was again fully considered, and it was
held that the criterion of a suit against a State was whether
the State was a party to the record, on the ground that if the
jurisdiction were held to depend, not upon that plain fact, but
19 Wheaton, 739 (1824).
ï~~GIBBONS v. OGDEN. 2
259
upon the supposed or actual interest of the State in the result
of the controversy, no rule was given by the Constitution by
which that interest could be measured.'
A case now arose of the greatest importance and of the
most lasting consequences, which gained great celebrity, and
determined for the first time the true construction of the
powers of Congress to regulate commerce among the several
States. It is known as Gibbons v. Ogden.' An injunction
had been granted by Chancellor Kent, which was sustained by
the highest Appellate Court in New York, restraining Gibbons
from navigating the Hudson River by steamboats duly licensed
for the coasting trade under an act of Congress, on the
ground that he was thereby infringing the exclusive right
granted by the State of New York to Robert Fulton and
Livingston, and by them assigned to Ogden to navigate all
the waters of that State with vessels moved by steam. The
decision of the lower Court rested upon the doctrine that the
internal commerce of the State by land and water remained
entirely and exclusively within the scope of its original
authority, and that the coasting license, while giving to the
steamboat an American character for the purpose of revenue,
was not intended to confer a right of property, or a right of
navigation or commerce. "To-morrow week," wrote Wirt to a
friend, "will come on the great steamboat question from New
York. Emmett and Oakley on one side, Webster and myself
on the other. Come down and hear it. Emmett's whole soul
is in the case, and he will stretch all his powers. Oakley is
said to be one of the first logicians of the age; as much a
Phocion as Emmett is a Themistocles, and Webster is as am1Henry Hitchcock, LL.D., "Constitutional Development in the United States
as Influenced by Chief Justice Marshall."
29 Wheaton, I (1824).
ï~~260 TILE SUPREME COURT OF THE UNITED STATES.
bitious as Caesar. He will not be outdone by any man if it
is within the compass of his power to avoid it. It will be a
combat worth witnessing."'
The proposition contended for was that Congress had exclusive authority to regulate commerce in all its forms, on all
the navigable waters of the United States, their bays, rivers
and harbors, without any monopoly, restraint or interference
created by State legislation. This the Supreme Court sustained in an opinion of great length. In construing the power
to regulate commerce, it was held that the term meant, not
only traffic, but intercourse, and that it included navigation,
and the power to regulate commerce was a power to regulate
navigation. Commerce among the several States meant commerce intermingled with the States, and which might pass the
external boundary line of each State and be introduced into
the interior. It was admitted that it did not extend to commerce which was purely internal, carried on between different
parts of the same State, but in the case at bar it was held
that the statute on the part of the State was an exercise of
the power of regulating commerce among the States which
had been confided to Congress by the Constitution, and that
inasmuch as Congress had passed laws authorizing the licensing of vessels for the coasting trade, which authorized them
to navigate all the waters within the jurisdiction of the United
States capable of being used for that purpose, this act was an
exercise of the power conferred by the clause of the Federal
Constitution concerning commerce among the States, and that
this necessarily excluded the action of the State upon the subject, Congress having occupied the field by its own legislation.
It was a point left undecided whether the power of Congress
1Kennedy's " Life of Wirt," Vol. II, p. 142.
ï~~REGULATION OF COMMERCE.
261
to regulate commerce was exclusive only where exercised, or
whether a State might exercise the power in the absence of Congressional action. In the subsequent case of Wilson v. Blackbird Creek Marsh Co.,' it was held that in a class of cases local
in their character, regulations affecting inter-State commerce
may be enacted by the States in the absence of the exercise
of that power by Congress, and a State law was held valid
which authorized a dam across a creek navigable from the sea
within the ebb and flow of the tide on the ground that it did
not conflict with any act of Congress. It is only recently that
the controversy which has divided the Judges for many years
upon the validity of laws passed by the States as police regulations and which do not amount to regulations of commerce
has become in any manner fixed or settled.2
In Brown v. The State of Maryland," the same interesting
question arose as to the regulations of foreign commerce:
whether a State could lawfully require the importer of foreign
articles to take out a license from the State before being permitted to sell a bale or package so imported. Said the Chief
Justice:
"There is no difference in effect between a power to prohibit the
sale of an article, and a power to prohibit its introduction into the country. The one would be a necessary consequence of the other. No goods
would be imported if none could be sold. No object of any description
can be accomplished by laying a duty on importation, which may not be
accomplished with equal certainty by laying a duty on the thing imported
in the hands of the importer... It is sufficient for the present to say
generally that when the importer has so acted upon the thing imported
' 2 Peters, 245 (1829).
2 The Passenger Cases, 7 Howard, 283 (1849); Wabash Railway Co. v. Illinois,
I18 U. S., 557 (1886). Philadelphia Steamship Co. v. Pennsylvania, 122 U. S., 326
(1886). Fargo v. Michigan, 121 U. S. (j886) 230.
3 12 Wheaton, 419 (1827).
ï~~262 THE SUPREME COURT OF THE UNITED STATES.
that it has become incorporated and mixed up with the mass of property
in the country,, it has perhaps lost its distinctive character as an import,
and has become subject to the taxing power of the State; but while remaining the property of the importer in his warehouse in the original
form or package in which it was imported, a tax upon it is too plainly
a duty on imports to escape the prohibition in the Constitution." 1
In the case of Crazg v. The Stale of Missouri 2 the Constitutional prohibition addressed to the States in relation to the
emission of bills of credit was fully considered. An act of
that State establishing loan offices and authorizing the issue
of certificates of stock was declared void. The Chief Justice
showed that the certificates of stock, which were signed by
the auditor and treasurer of the State, to be issued by them
to the amount of hundreds of thousands of dollars, of denominations not exceeding ten dollars nor less than fifty cents,
purporting on their face to be receivable at the Treasury, or
at any loan office of the State of Missouri, in discharge of
taxes or debts due to the State, were undoubtedly intended to
perform the same office as Bills' of Credit.
" Had they been termed Bills of Credit," said he, " instead of certificates, nothing would have been wanting to bring them within the
prohibitory words of the Constitution. And can this make any real difference? Is the proposition to be maintained that the Constitution meant
to prohibit names and not things? That a very important act, big with
great and ruinous mischief, which is expressly prohibited by words most
appropriate for its description may be performed by the substitution of a
name? That the Constitution in one of its most important provisions
may be openly evaded by giving a new name to an old thing? We
cannot think so."
' Compare the License Cases, 5 Howard, 504 (1847), and Leisy v. Hardin, 135
U. S., ioo (189o).
2 4 Peters, 410 (1830).
ï~~POSITION AND INFLUENCE OF THE COURT.
263
This case was decided by a divided Court, Justices Johnson, Thompson and McLean dissenting.
The precise question again arose, four years later, in the
case of Byrne v. Stale of Missouri,' in which this decision was
reviewed and confirmed.2
By this time it was quite apparent that the energy of
the Court in upholding the provisions of the Constitution, in
expounding its language, in applying its principles, and in
vindicating its supremacy, had built up a national system of
jurisprudence upon foundations so broad and deep that little
else than revolution could shake it. "The importance of that
Court," wrote William Wirt, as Attorney-General to President Monroe, "in the administration of the Federal Government, begins to be generally understood and acknowledged.
The local irritations at some of their decisions in particular
quarters (as in Virginia and Kentucky for instance) are
greatly overbalanced by the general approbation with which
those same decisions have been received throughout the Union.
If there are a few exasperated portions of our people who
would be for narrowing the sphere of action of that Court
and subduing its energies to gratify popular clamor, there is
a far greater number of our countrymen who would wish to
see it in the free and independent exercise of its. Constitutional powers as the best means of preserving the Constitution itself.... It is now seen on every hand, that the
functions to be performed by the Supreme Court of the United
8 Peters, 4o (1834).
2 These cases, as will be seen hereafter, conflict with that of Briscoe v. The Bank
of the Commonwealth of Kentucky, Ii Peters, 257 (1837), one of the earliest Constitutional cases decided by Chief Justice Taney, in which it was held that an act
incorporating the Bank of the Commonwealth of Kentucky was a Constitutional
exercise of power by that State, and that the notes issued by the Bank were not
bills of credit within the meaning of the Constitution.
ï~~264 THE SUPREME COURT OF THE UNITED STATES.
States are among the most difficult and perilous which are to
be performed under the Constitution. They demand the
loftiest range of talents and learning and a sort of Roman
purity and firmness. The questions which come before them
frequently involve the fate of the Constitution, the happiness
of the whole nation, and even its peace as it concerns other
nations." 1
Four years later the venerable Charles Carroll, of Carrollton, the last survivor of the Signers of the Declaration of
Independence, and then upon the verge of the grave, wrote to
Judge Peters: "I consider the Supreme Court of the United
States as the strongest guardian of the powers of Congress
and the rights of the people. As long as that Court is composed of learned, upright and intrepid judges, the Union will
be preserved, and the administration of justice will be safe in
this extended and extending empire."2 Although some of the
school of Jefferson might feel apprehensive of results, when
viewing the strides of the nation towards power, yet there
was no real cause for alarm, even on the part of those most
opposed to consolidation, for in the case of the Providence
Bank v. Billings,3 the just powers of the States were carefully
guarded. It was held that a law of Rhode Island imposing
a tax upon a bank chartered by that State was valid, it being
an exercise of sovereignty with which the Federal Constitution did not interfere.
The bank had been chartered in 1791, and in 1822 the
Legislature had passed an act imposing a duty on licensed
1 Wirt to Monroe, May 5, 1823. Kennedy's "Life of Wirt," Vol. II, p. I34.
2 Letter of Charles Carroll, of Carrollton, to Hon. Richard Peters (U. S. District
Judge at Philadelphia) 28th June, 1827, unpublished, in possession of the Historical
Society of Pennsylvania. Peters' Papers.
s 4 Peters, 514 (1830).
ï~~TAXATION AN INCIDENT OF SOVEREIGNTY.
265
persons and others, and bodies corporate within the State.
The Bank resisted the payment of the tax on the ground
that this act was repugnant to the Constitution of the United
States, inasmuch as it impaired the obligation of the contract
created by the charter. It was alleged that the cases of
Fletcher v. Peck, and of Trustees of Dartmouth College v.
Woodward, had established the principle that a legislative
grant to a corporation was a contract within the meaning of
the Constitution, and that the cases of M' Culloch v. Maryland, and Weston v. City of Charleston, had decided that the
power of imposing a tax upon a corporation involved the
power of destroying it. The act complained of was therefore
contrary to the Constitutional prohibition.
The Chief Justice, however, in a very closely reasoned
opinion, draws the distinction between the action of a State
operating upon its own creatures, and the action of a State
coming in conflict with a Constitutional law of Congress. Conceding that the charter of such a corporation was a contract,
it was clear that the charter contained no stipulation exempting the bank from taxation. The power of taxation was one
of vital importance. It was an incident of sovereignty essential to the existence of the State government and the relinquishment of such a power could never be presumed. It
might be exercised, therefore, in all cases by a State unless
it conflicted with an Act of Congress, the supremacy of which
was always to be recognized. The sovereignty of a State extends to everything which exists by its own authority, or is
introduced by its own action, although it does not extend to
those means which are employed by Congress to carry into
execution powers conferred upon that body by the people of
the United States. The act was, therefore, held to be Constitutional and valid.
ï~~266 THE SUPREME COURT OF THE UNITED STATES.
Another instance of careful guardianship of the rights of
the States is to be found in Barron v. The Mayor of Balti
more,' where it was held that the provision in the Fifth Amendment to the Constitution that private property shall not be
taken for public use without just compensation, was a restriction upon the power of Congress alone, and not upon the
States. It was shown by a simple but conclusive argument
that each State was independent within its own sphere and
free from the power of the United States.
In the case of Ogden v. Saunders2 the Chief Justice for
the first time found himself in a minority upon a question
of Constitutional law, and was obliged to dissent from the
opinion of the Court, and in this was supported by the views
of Duvall and Story. The question raised involved another
phase of that which had arisen in Sturges v. Crowninshield,
the majority of the Court holding that the municipal law in
force when a contract is made is part of the contract itself,
and that if such a law provides for the discharge of the contract upon prescribed conditions, its enforcement upon those
conditions does not impair the obligation of the contract of
which that law itself was a part.
The dissenting judges maintained that, however an existing law may act upon contracts when they come to be enforced, it does not enter into them as part of the original
agreement, and that an insolvent law which released the
debtor upon conditions not in effect agreed to by the parties
themselves, whether operating upon past or future contracts,
impaired their obligation. But it was also held by a divided
Court, Marshall concurring, that the State law, if a part of
the contract, was such only as between citizens of that State,
1 7 Peters, 213 (1833).
2 12 Wheaton, 213 (1827).
ï~~THE CHEROKEE INDIANS.
267
and since the creditor in this case was a citizen of Louisiana,
hlie was not bound by the New York insolvent law, and the
debtor was not discharged.
These doctrines were again recognised in Boyle v. Zackarie,l in which the Chief Justice declared that inasmuch as
they had been established by a majority of the Court they
must be viewed as well-settled law.
A case now arose, closely connected with one of the most
romantic and eventful chapters in the history of the nation.
The controversy between the State of Georgia and the Cherokee tribe of Indians is memorable for its excitements, its influence upon the feelings of a large section of the Union, and
for the extraordinary proceedings to which it gave rise. It
marks a distinct stage of the process by which, one after
another, the tribes of aborigines have melted away before a
civilization which inevitably extinguishes whatever it cannot
absorb. We can deal only with the legal aspect of the case.'
A motion was made in the Supreme Court for an exercise of
its original jurisdiction to restrain by inujunction the execution of certain laws of the State of Georgia, in the territory
of the Cherokee nation, the tribe claiming that they had the
right to proceed as a foreign State, under the Constitutional
provision which gave to the Court exclusive jurisdiction
in controversies in which a State, or the citizens thereof, and
a foreign State, citizens or subjects thereof, were parties. Although the anger of the American people was kindled in
behalf of the unfortunate Indians, whose clear and undeniable
rights had been wrested from them by the State without reference to the obligations owed to them by the Government of
the United States, under the Treaty of Hopewell, yet it was
1 6 Peters, 348 (1832).
- Cherokee Nation v. The State of Georgia, 5 Peters, I (1831).
ï~~268 THE SUPREME COURT OF THE UNITED STATES.
held that, though no case could be presented to the Court
better calculated to excite their sympathies, yet the Court
had no jurisdiction of the cause, inasmuch as the Cherokee
nation was not a foreign State in the sense in which that
term was used in the Constitution.
The Chief Justice showed, from the language of the Constitution, from the habits and usages of the Indians, from
their relations to the whites, and their appeal to the tomahawk instead of courts of justice, that the statesmen who
formed the Constitution could not have meant to designate
them by the term foreign State. Besides this they were as
clearly contradistinguished by a name, appropriate to themselves, from foreign nations, as from the several States composing the Union. In addition, the interposition of the Court
would savor too much of the exercise of political power to be
within the proper province of the judiciary. In these views
Justices Johnson and Baldwin concurred, each in separate
opinions, in which it was declared that neither politics nor
philanthropy should ever impel the Court to assume such a
judicial power, full of awful responsibilities. A powerful dissenting opinion, concurred in by Mr. Justice Story, was delivered
by Mr. Justice Thompson. It is understood that the opinion of
Chancellor Kent, in favor of the jurisdiction, had been obtained by counsel before the bill in equity was filed, and
an effort was made, with what success is not known, to
obtain from Chief Justice Marshall, in advance, his impressions in regard to the political character of the tribe.1
The subject at last became a matter of loyalty or disloyalty to the administration of President Jackson, which favored
the removal of the Indians, and "a chord of insanity to
1 See Letter of William Wirt to Judge Carr, June 21, 1830, Kennedy's "Life of
Wirt," Vol. II, pp. 253, 257, 264.
ï~~GEORGIA'S DEFIANCE.
269
many." The most intemperate abuse was showered upon the
counsel for the Indians, William Wirt and John Sergeant,
who reappeared, undaunted and ardent, in the case of Worcester v. Georgia,1 in which it was held that a law of the State of
Georgia, under which a missionary had been convicted of the
crime of preaching to the Indians, and residing among them
without a license from the governor, was unconstitutional and
void.
"The treaties and laws of the United States," said the Chief Justice,
"contemplate the Indian Territory as completely separated from that of
the State, and provide that all intercourse with them shall be carried
on exclusively by the Government of the Union."... "The Cherokee Nation is a distinct community, occupying its own territory with
boundaries accurately described, in which the laws of Georgia can have
no force, and in which the citizens of Georgia have no right to enter but
with the assent of the Cherokees themselves, or in conformity with treaties
or the acts of Congress. The whole intercourse between the United
States and this nation is, by our Constitution and law, vested in the
Government of the United States. The act of the State of Georgia
under which the plaintiff in error was prosecuted is, consequently, void
and the judgment a nullity."
The State of Georgia treated this decision with defiance.
The missionary was still imprisoned in the penitentiary
doomed to hard labor, the Governor declaring that he would
rather hang him than liberate him under the mandate of the
Supreme Court. The Federal Government gave no hope of
interfering in the controversy. On the contrary Jackson is reported to have said: "John Marshall has made the decision,
now let him execute it." At the end of eighteen months,
however, cooler judgment and more moderate counsels prevailed; the contest had grown hopeless to the weaker party,
and the prisoner was released.2
16 Peters, 515 (1832)"
SSee Kennedy's "Life of Wirt," Vol. II, p. 323.
ï~~270 THE SUPREME COURT OF THE UNITED STATES.
Within a short time the Court had occasion, in the case
of The State of New Jersey v. The State of New York,' to
consider the method of procedure in the exercise of original
jurisdiction in suits between' States. Congress had passed no
act for the special purpose of prescribing the mode in which
suits should be conducted, and as has been seen,' Mr. Justice
Iredell in his remarkable dissenting opinion in Chisholm v.
The State of Georgia had contended that an Act of Congress
was necessary to enable the Court to exercise its jurisdiction,
but after a careful review of all the early cases in which
States had been made defendants, and the rules respecting
process, the Chief Justice announced that it had been settled,
on great deliberation, that the jurisdiction might be exercised
under the authority conferred by the Constitution. An order
was therefore made, the complainant having observed the rule
as to the service of process on the Governor and AttorneyGeneral of the defendant State, that the cause might proceed
ex parle, and be prepared for a final hearing.
In the case of Watson et al. v. Mercer et ux.,3 it was
held that the Supreme Court had no right to pronounce an
act of a State Legislature void as contrary to the Constitution from the mere fact that it divested rights which had
vested antecedently. Retrospective laws were not forbidden.
The Constitutional prohibition was confined to ex post facto
laws, and it had been determined that this phrase applied
solely to penal and criminal laws.
With this case, the review of the decisions of the Court
upon Constitutional questions during the time of Chief Justice
Marshall is completed. The principles which governed the
Court, during that time, in interpreting the Constitution, were
'5 Peters, 284 (1831). 2See Ante, p. 175.
38 Peters, 88 (1834).
ï~~PRINCIPLES OF CONSTRUCTION.
271
well expressed in the case of the United States Bank v. Deveaux,1 where it is said:
"The Constitution and the law are to be expounded without leaning
one way or the other, according to those general principles which usually
govern in the construction of fundamental laws."
And in Ogden v. Saunders,2 where it is declared"That the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom
the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in
them nor contemplated by its framers."
The rule is stated in another form in Gibbons v. Ogden3
by the Chief Justice:
"The enlightened patriots who framed our Constitution and the
people who adopted it must be understood to have employed words in
their natural sense, and to have intended what they said.... We know
of no rule of construing the extent of such powers other than is given
by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.... What do gentlemen mean by a strict construction? If they contend only against that
enlarged construction which would extend words beyond their natural
and obvious import, we might question the application of the term, but
should not controvert the principle. If they contend for that narrow
construction which, in support of some theory not to be found in the
Constitution, would deny to the government those powers which the
words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that
narrow construction which would cripple the government, and render it
unequal to the objects for which it is declared to be instituted, and to
'5 Cranch, 62 (18o9). 2 12 Wheaton, 213 (1827).
39 Wheaton, I (1824).
ï~~272 THE SUPREME COURT OF THE UNITED STATES.
which the powers given, as fairly understood, render it competent, then
we cannot perceive the propriety of this strict construction, nor adopt it
as the rule by which the Constitution is to be expounded."
Such were the principles of construction applied during
a period of thirty-four years. There was no violent effort to
stretch or strain the language of the Constitution, or make a
cloak of the contents to cover usurpations of power. But all
attempts.to strangle the instrument itself, or impede the fair
exercise of its delegations of authority, were promptly crushed.
A steady, but scarcely noticeable application of a liberal and
enlightened view, long continued, wrought marvels. "Stronger
than he who makes the laws is he who can construe them
for a long time." As was finely said in Osborn v. The Bank
of the United States: "The judicial department has no will
in any case. Judicial power is never exercised for the purpose of giving effect to the will of the judge, but always for
the purpose of giving effect to the will of the law." And as
it was the purpose of the people of the United States, in
ordaining and establishing the Constitution for the government of themselves and their posterity, that the nation should
be supreme, an impregnable wall of precedents was built
up by slow degrees, which proved to be the bulwark and
safety of the nation, when, in after years, the integrity of the
Union was assailed by the armed legions of Secession.
During the period covered by the decisions which have
been reviewed, death invaded the precincts of the Court and
struck down several of the Associate Justices. The first victim
of the insatiate archer was Mr. Justice Livingston, who had
held his place for seventeen years since 18o6. His successor
was Smith Thompson, of New York, who was commissioned
in the recess, September i, and recommissioned, on confirma
ï~~
ï~~C
ï~~SMITH THOMPSON.
273
tion by the Senate, December 8, 1823. At this time he was
serving as Secretary of the Navy, under Monroe, and prior to
that time had held for fourteen years, in the Supreme Court
of New York, a place at the side of Chief Justice, afterwards
Chancellor Kent, with Spencer and Tompkins, as Associates,
and had distinguished himself at a time when that tribunal
might claim in point of talent and learning to rank with any
State Judiciary in the Union. He was born, according to
some authorities, in Amenia, New York, in the year 1767, and,
according to others, at Stanford, in Duchess County, upon
January 17, 1768. He received a common school education,
and subsequently went to Princeton, graduating in his twentieth year, in 1788. He entered immediately upon the study
of the law under Kent, supporting himself in the meantime
by teaching school at Poughkeepsie, was admitted to the Bar
in 1792, and began to practice at Troy. Pursuing his vocation with diligence, at the end of six years he became interested in politics and was sent to the State Legislature, serving
also as a delegate to the State Constitutional Convention, and
as attorney for the middle district of New York. In 18o1
Governor Clinton appointed him an Associate Justice of the
Supreme Court of the State, and in 1814 Kent having become
Chancellor, Thompson became Chief Justice. He was called
by President Monroe, four years later, to the position of
Secretary of the Navy. Prior to this he had declined the
Mayoralty of New York City. In 1823 he became the successor of the lamented Livingston in the highest court in the
Union.
His acceptance of the latter place was not immediate, and
there is evidence to show that he felt called upon to decline
it. In the meantime the President was urged by his AttorneyGeneral, William Wirt, to disregard political considerations
18
ï~~274 THE SUPREME COURT OF THE UNITED STATES.
and confer the appointment upon James Kent. Thompson's
subsequent determination prevented the association of one of
the most illustrious names in American jurisprudence with the
history of her highest tribunal. He held the place until his
death in 1843.
His character as a Judge is best described by his associate, Mr. Justice Nelson, at the meeting of the Court held
upon the occasion of his death. "From the time of his
appointment to the Supreme Bench, he laboriously fulfilled all
the obligations of his elevated station, which, it is no exaggeration to say, he illustrated and adorned, distinguished as he
was for everything that can give a title to reverence. Of the
assiduity, the patience, the energy and singleness of purpose
with which he discharged his arduous official duties, his judicial associates made full acknowledgments; whilst of his
genius, his attainments and his intellectual vigor, the recorded
judgments of the Court during the whole term of his service
furnish permanent attestation." Yale and Princeton in 1824,
and Harvard in 1835, conferred upon him the degree of LL.D.
He was interested in many benevolent enterprises, and at his
death was the oldest Vice-President of the American Bible
Society.
In February, 1826, Mr. Justice Todd succumbed to long
continued illness, expressing a desire before his death that his
place should be filled by Robert Trimble, then United States
District Judge in the District of Kentucky. His preference
and that of the President coincided, and Judge Trimble was
commissioned an Associate Justice of the Supreme Court on
the 9th of May, 1826. He was born in Augusta County, Virginia, in 1777, and was the son of William Trimble, one of the
earliest settlers in Kentucky, a man of bold, firm and enterprising character, who encountered the dangers and hardships
ï~~6 %2 -
ï~~
ï~~ROBERT TRIMBLE.
275
of a new settlement. Young Trimble, at the age of three
years, accompanied his father at the time of his emigration,
and the early years of his life were devoted to agriculture.
He was called upon to take part in movements against Indian
invasion, and distinguished himself by the display of courage
and sagacity.
He had a powerful mind, developed by self-training, which
prompted him to secure an education which would fit him for
higher duties. By teaching an English school he procured
the means of entering Bourbon Academy, and afterwards became a student in the Kentucky Academy, in Woodford
County, where he completed his classical course. He then
studied law, and in i8oo began its practice at Paris, in Bourbon County, where he married. In I802 he was elected to
the House of Representatives, but declined a re-election in the
following year, preferring to devote himself to his profession.
In 1807 he became a Judge of the Supreme Court of Kentucky, a position which he filled with increasing reputation.
Three years afterwards he relinquished the office, to return to
the Bar, and in 18io refused a commission as Chief Justice
of the State. He declined the same office in 1813, and continued to distinguish himself at the bar until 1817, when he
received the appointment of District Judge of the United States
for the District of Kentucky. He was a man learned in the
law, just and discriminating in judicial investigation, and his
decisions are characterized by great legal accuracy, research
and perspicuity, and by a large and liberal equity. He was
clear and comprehensive in his statements, and illustrated and
enriched his discussions by abundant legal learning. His
period of service in the Supreme Court was short, as in less
than two years he was removed by death. Of him it has been
said that perhaps no Associate Justice of the Supreme Court
ï~~276 THE SUPREME COURT OF THE UNITED STATES.
of the United States occupying the position for so short a
time, placed the result of his labor in so conspicuous a form.
In Montgomery v. Hernandez' he defined a Federal question,
declaring also that the party must claim the right under the
Constitution for himself. In Mallow v. Hinde2 he asserted
the right of a United States Court to retain jurisdiction of a
cause on an injunction bill as between the parties before it,
until the plaintiffs could litigate their controversy with other
parties in another tribunal, whereupon the United States Court
would proceed with its adjudication. And in United States v.
Nichol, he settled the rights of sureties upon official bonds as
against the United States.3
The place vacated through Trimble's death was filled by
the appointment of John McLean, of Ohio, who was commissioned upon the 7th of March, i829. Although his genius
was not brilliant, yet his talents were great, and his mind
was able to comprehend the largest subject and did not shrink
from the minutest analysis. He was eminently practical, ever
zealous in the pursuit of truth, and his faculties were so well
ordered that he could always utilize and control his ideas.
He was born in Morris County, New Jersey, March Ii, 1785,
and at the early age of four years was taken by his father
to Morgantown, Virginia, and afterwards to Nicholasville,
Kentucky, from which the family removed, in 1799, to Ohio,
where they settled in Warren County, clearing their farm by
their own labor. His early education was slight, but at the
age of sixteen years he studied under a private tutor. At
this time his ambition to study law was aroused, and he en1 12 Wheaton, 129 (1827). 2 1i2 Wheaton, 193 (1827).
See an admirable biographical sketch prefixed to the First Volume of the
Indexed Digest of the United States Supreme Court Reports, published by the
Lawyers' Co-operative Publishing Co.
ï~~400
ï~~
ï~~JOHN McLEAN.
277
gaged as a deputy in the Clerk's office in Cincinnati, maintaining himself in this manner while pursuing his legal
studies under Arthur St. Clair. In 1807 he was admitted to
the Bar, beginning practice at Lebanon, and in 1812 was sent
to Congress, defeating two opposing candidates. In political
principles he adhered to the Democratic Party, was an ardent
supporter of the war, and of President Madison's administration. During his Congressional term he became the author
of the law to indemnify individuals for property lost in the
public service, and introduced resolutions of inquiry into the
expediency of pensions for widows of officers and soldiers who
fell in the service of their country. In 1814 he was re-elected
by a unanimous vote, a rare distinction; and in the following
year declined a nomination to the Senate of the United States.
Shortly after this he was chosen by the Legislature to the
position of Judge of the State Supreme Court, and to accept
this position resigned his seat in Congress at the close of the
session of 1816. His judicial career was marked by the ability and eloquence of his charges to grand juries, and the
vigor and clearness of his opinions. In 1822 President Monroe appointed him a Commissioner of the General Land Office,
and by efficiency and diligence he introduced order and economy into that department. In the following year he was appointed Postmaster-General, and continued to hold the same
place under John Quincy Adams. When General Jackson
became President he expressed a wish to retain him in this
position, but as McLean differed with him on the question of
official appointments and removals, and had little or no sympathy with the spoils system, he refused the portfolio. He was
then offered successively the offices of the War and the Navy
Departments, both of which he declined, but finally accepted
the appointment of Justice of the Supreme Court of the United
ï~~278 THE SUPREME COURT OF THE UNITED STATES.
States, as more in accord with his tastes and talents, and
entered upon its duties during the January Term of 1830.
His term of judicial service continued until 1861. He is
best known to the country as one of the dissenting judges
in the Dred Scott case, but his opinions are well and favorably known to the profession for their clearness and vigor
of expression. Although not in entire harmony upon the
questions raised in the Passenger and License cases with the
majority of his brethren, yet his views are expressed with
uncommon and persuasive force. His sentiments upon the
question of slavery were in effect that it had its origin merely
in power, and was against right, and was sustained in this
country by local law only. He became identified in sympathy
with the party opposed to its extension, and his name came
before the Free Soil Convention at Buffalo in 1848 as a candidate for the Presidency. In the Republican National Convention held in Philadelphia in 1856 he received, for the same
nomination, 196 votes against 359 for John C. Fremont, and
in 186o, at the Republican Convention in Chicago, he received several votes. Harvard University conferred upon him
in 1839 the degree of Doctor of Laws. He published two
volumes of Reports of his decisions at Circuit, and pronounced
an eulogy upon James Monroe in 1831. He was a man of
commanding appearance, of fine and noble presence, gentle.
and courteous in manner, and affectionate in his intercourse
with the members of the Bar. He died at the age of seventysix, much beloved and respected. His devotion to duty was
marked. Of him Chief Justice Taney said: " He held a seat
on this bench for more than thirty years, and until the last
two years of his life, when his health began to fail, was
never absent from his duties here for a single day. The reports are the recorded evidence of a mind firm, frank and
ï~~
ï~~V
ï~~HENRY B A L D WIN.
279
vigorous and full of the subject before him. He displayed in
the office of Postmaster-General administrative talent hardly
ever surpassed, with a firmness of character and uprightness
of purpose never questioned."
Mr. Justice Washington died upon the 26th of November,
1829, and his vacant place was conferred upon Henry Baldwin of Pennsylvania, who was commissioned on the 6th of
January, 1830. Baldwin, who was a man of extraordinary
intellectual power, was a native of New Haven, Connecticut,
where he was born on the 14th of January, 1780. He was a
graduate of Yale College, studied law, and removed to Pittsburgh, and thence to Meadville, in Crawford County, Pennsylvania. His rise at the bar was rapid. He acquired early a
position of eminent distinction, which he never lost, due to
strong reasoning powers, retentive memory, and profound and
varied knowledge. His arguments were characterized by singular fullness of illustration of authority; his language was
fluent, ardent and eloquent. After several years of successful
practice, and a career of activity in politics, he was sent to
Congress in 1817, remaining a member of that body until
1822. In i819 he acted as the Chairman of the Standing
Committee on Manufactures, and distinguished himself as an
advocate of the encouragement of American industries; he
was one of the small minority of the delegation from Pennsylvania who sustained, on its final passage, the bill for the
admission of Missouri into the Union. So high were his professional attainments, and so great was the legal ability displayed in his Congressional career, and such the reputation
he had acquired for superior talents and extensive information
and learning, that he was selected by President Jackson as
an Associate Justice of the Supreme Court. Upon the bench
he soon attracted to himself the attention of the Bar and the
ï~~280 THE SUPREME COURT OF THE UNITED STATES.
country by challenging the Constitutional views of Chief Justice Marshall and Mr. Justice Story. He construed the Constitution as the grant of the people of the several States, and
not as the grant of the people of the United States in the
aggregate, and constantly dissented from the judgments of
his associates, particularly upon questions involving the Constitutionality of State laws alleged to impair the obligation
of contracts. He was one of the dissenting Judges in Crazy
v. Missouri, maintaining an opposite view to that of the
Chief Justice upon the nature of Bills of Credit, and in other
cases always inclined to a construction which would sustain
a State law as a police regulation, rather than overturn it as
an attempt to regulate commerce. Each State, according to
his theory, was a single sovereign power in adopting the
Constitution, and he held that the operation of the Constitution must, of necessity, be like that of a treaty of cession by
a foreign State to the United States. It has been asserted
that he largely over-estimated the impression which his repeated dissents had produced upon other members of the
Supreme Court, and this overweening self-reliance led him to
prepare "A General View of the Origin and Nature of the
Constitution and Government of the United States," embracing in large part his dissenting opinions, and published after
Mr. Taney had become Chief Justice. He frankly admitted
that his views might be deemed "peculiar," and "founded on
a course of investigation different from that which is usually
taken." No more graphic statement of the complete want of
cohesion among the judges at this period upon the question
of Constitutional law can be found than that given by Baldwin: "In the case of the Commonwealth Bank of Kentucky
I was in the minority; in the Charles River Bridge case it
now appears that I stood alone after the argument in 1831;
ï~~HENRY BALD WIN.
281
the Tennessee boundary case hung in doubtful scales, and
in the New York case I was one of the bare majority. By
changes of judges and of opinions there is now but one
dissentient in three of the cases; and though my opinion
still differs from that of three of my brothers who sat for the
fourth,.six years ago, it is supported by the three who have
been since appointed. Placed in a position as peculiar now
as it was then, and since, I feel called upon to defend it, and
to explain the reasons why it was then assumed and is now
retained."
His labors upon the circuit were marked by the same
extraordinary grasp and vigor of mind. In 1833 he delivered
an opinion in the case of McGill v. Brown,1 in construction
of the will of Sarah Zane, upon the subject of a bequest for
pious and charitable uses, which, in the judgment of the late
United States District Judge, John Cadwalader, himself a jurist
of extraordinary learning, was the greatest legal opinion ever
delivered. He discussed the question with a degree of industry, learning and research that can scarcely be paralleled in
the annals of jurisprudence. Towards the close of his life
his intellect became deranged, and he was violent and ungovernable in his conduct upon the bench. His death occurred in Philadelphia upon the 2ISt of April, 1844, at the
age of sixty-five years. He died from paralysis, and in such
abject poverty that a subscription among his friends was
required for his burial.
In August, 1834, Mr. Justice William Johnson, of South
Carolina, died, after a judicial service of more than thirty
years. His place was filled by the appointment of James M.
Wayne, of Georgia, who was commissioned on the 9th of
1Published with note to Blenon's Est., Brightly's Rep. (Pa.) 346.
ï~~282 THE SUPREME COURT OF THE UNITED STATES.
January, 1835. He was a native of Savannah, where he was
born in 1790. He received an excellent preliminary education from a private tutor, and entered Princeton College so
early that he became a graduate in 18o8. Returning home,
he read law, and was called to the Bar within two years,
practicing in his native city. In 1813 he was elected a member of the General Assembly as an opponent of the Relief
Law, which had created much feeling in the State. He was
twice re-elected, and subsequently declined to become a candidate. In 1823 he was chosen Mayor of his native city, and in
the following year was placed upon the bench of the Superior
Court, holding this office for five years, and acquiring an honorable distinction as a judge. From 1829 until 1835 he was
a member of Congress, where he took an active share in
debate, and supported General Jackson in his Anti-Nullification acts. The President expressed his appreciation of
Wayne's services by appointing him an Associate Justice
of the Supreme Court. In Congress he favored free trade,
opposed internal improvements by Congress, except of rivers
and harbors, was conspicuous in his opposition to the rechartering of the United States Bank, claiming that it would
confer dangerous political powers upon a few individuals.
He took an active part in the removal of the Cherokee
Indians to the West. He presided in two conventions
held for the revision of the Constitution of Georgia, and
was for many years President of the Georgia Historical Society, and one of the Trustees of the University of Georgia,
taking an active part in promoting and extending education in his native State. He was the last member of the
Supreme Court as constituted under 'Chief Justice Marshall,
a fact which was one of the felicities of his career, and
while it was the remarkable fortune of President Jackson
ï~~fl iVfil
P /1
l
t
i
i
I
i
1
ï~~w
L
ï~~THE PASSING OF MARSHALL.
283
to fill a majority of the seats upon the bench of the
Supreme Court by appointments to vacancies occurring during his term, it was the lot of Mr. Justice Wayne to be the
last survivor of these appointees. As a judge he was learned,
able and conscientious, and during an era of strict construction he inclined to the support of national views. His opinions are especially valued upon questions of admiralty. At
the outbreak of the Civil War his sympathy and efforts were
all with the cause of the Union, and his opinions indicate his
fidelity to the Constitution, as interpreted by the principles of
Marshall. He lived to see the triumph of his views and the
restoration of Peace under conditions which promised to be
permanent.
We have now reached the close of a distinct epoch in the
history of the Court. The career of Chief Justice Marshall
was over. He had seen Washington, his associate for thirty
years, stricken down by death, and Johnson, his fellow-laborer
for the same period of time, disabled by age and infirmity.
He had seen Duvall, at the age of eighty-two, retire from the
consultation-room, and had followed Livingston and Todd to
their graves. Of all the Judges who had shared with him
the grandeur and glory of his unexampled career Story alone
remained. New doctrines and new men were pushing for place
and recognition. The Executive was distinctly hostile, and
was resolved upon revolutionizing the Court. Five vacancies
had occurred during the past ten years, and men had been
appointed, who gradually broke away from the old doctrines.
Thompson, McLean, Baldwin and Wayne, although full of
personal reverence for the exalted character of the aged Chief
Justice, had but little sympathy with that school of Federalists
whose principles had become the adamantine foundations of
our jurisprudence. They belonged to a later generation and
ï~~284 THE SUPREME COURT OF THE UNITED STATES.
were the representatives of new forces. Substantial unanimity
of opinion upon a Constitutional question became a thing of
the past. A cloud no larger than a man's hand had arisen,
and its shadow was felt in the cases of Briscoe v. The Bank
of the State of Kentucky, and The City of New York v. Miln.'
It was a solemn and ominous announcement that in cases
involving Constitutional questions unless four judges should
concur, no judgment would be delivered, except in cases of
necessity, and as four judges had not concurred in those
cases, that they should stand over for re-argument.
But however anxious Marshall might be as to the future,
the past was secure, and he could reflect with serene satisfaction upon what had been accomplished. The clouds that
gathered about his dying head burned with the unquenchable
glories of his matchless day. He and his associates had considered jointly many of the most important powers of Congress; they had established and sustained the supremacy of
the United States; their right as a creditor to priority of payment; their right to institute and protect an incorporated bank;
to lay a general and indefinite embargo; to levy taxes; to preempt Indian lands; to control the State militia; to promote
internal improvements; to regulate commerce with foreign
nations and among the States; to establish a uniform rule of
naturalization and uniform laws on the subject of bankruptcy;
they had dealt with a mass of implied powers incidental to
the express powers of Congress; they had enforced the Constitutional restrictions upon the powers of the States; they
had stricken down pretentious efforts to emit bills of credit,
to pass ex post facto laws, to control or impede the exercise of
Federal powers; to impair the obligations of contracts; to tax
1 8 Peters, 118 (1834).
ï~~MONUMENTUM,ERE PERENNIUS.
285
national agencies; to exercise power over ceded territory; to
cripple commerce, and to defy the lawful decrees of the Federal Courts. They had faced the frowns of Jefferson and Jackson, and conquered both by invincible logic. They had subjected the ministerial officers of the Executive Department to
the control of the judiciary, and had shivered into atoms the
pretensions of Congress to override the Constitution. They
had defined the jurisdiction of the Federal Courts, both original
and appellate, and had sustained against the most stubborn
resistance of sovereign States the right of the supreme tribunal to supervise decrees of State courts, when denying a right
conferred by the Constitution. They had dealt with all those
lofty questions of international law which grew out of the War
of 1812; they had developed the admiralty and maritime jurisdiction of the District Courts, as well in matters of prize as
on the Instance side of the Court, and had extended the application of the principles of commercial law. They had swept
through the domain of chancery, and placed the law of trusts
and charities upon a stable basis. They had reared a solid
and magnificent structure, destined "at no distant period of
time to cast a shadow over the less elevated and the less attractive and ambitious systems of justice in the several States."
In doing this, they entitled themselves forever to the gratitude
and veneration of posterity. These results had been accomplished solely through the moral force which belonged to the
independent position of the Judiciary. With no direct control
over the sword or purse of the nation, with no armed force
behind them, surrounded by no halo of military achievements
to dazzle the people, supported by no party obedient to their
behests, with no patronage to distribute, and with no appropriations to attract a crowd of camp followers, the Judges of
the Supreme Court, placed by the Constitution beyond the
ï~~286 THE SUPREME COURT OF THE UNITED STA 7TES.
reach of partisan influences, and protected by the life tenure
of their offices from sudden gusts of passion, wrought on in
the quiet performance of their duty, without fear or favor, and
relied for the results upon the reverence of the people for the
majestic and final utterances of the Law, with a proud consciousness of their authority.
The judgments of Marshall carried the Constitution
through the experimental period, and settled the question of
its supremacy. "Time has demonstrated their wisdom. They
have remained unchanged, unquestioned, unchallenged. All
the subsequent labors of that high tribunal on the subject of
Constitutional law have been founded on, and have at least
professed and attempted to follow them. There they remain.
They will always remain. They will stand as long as the
Constitution stands. And if that should perish, they would
still remain to display to the world the principles upon which
it rose, and by the disregard of which it fell."1
NOTE.
The amount of work done by the Supreme Court during the time of Marshall has been estimated as follows: 11o6 opinions were filed, of which 519
were delivered by Marshall, the remainder being unequally divided among the fifteen judges who were his Associates. Eight dissenting opinions were filed by Marshall, only one of which involved a question of Constitutional law; Ogden v.
Saunders. From ISoi to 1835 sixty-two decisions were given upon Constitutional
questions, in thirty-six of which the opinion was by Marshall, the remaining twentysix being by one of seven Justices. These decisions are reported in 30 volumes
of Reports from I Cranch to 9 Peters inclusive. (See note and table to a lecture
on Constitutional Development in the United States as Influenced by Chief Justice
Marshall, by Henry Hitchcock, LL.D. "Constitutional History as Seen in American
1 Address of Hon. E. J. Phelps, at the Second Annual Meeting of the American
Bar Association, Aug. 21, 1879.
ï~~SHIRLEY'S CRITICISM. 287
Law," pp. 118-120. "The Supreme Court of the United States," by W. W. Willoughby, p. 90.)
An effort has been made to depreciate this work. Mr. Shirley, in his book on
the Dartmouth College Causes, p. 386, says: "The extent of the business of the
Supreme Court during the time of Marshall has been much exaggerated. Less
than 13oo00 cases were decided by it, and in those, Marshall delivered about five
hundred opinions, or on an average about fifteen a year. During the first two
years after he came to the bench, but five causes were decided, in four of which
he delivered the opinion. His first term lasted five days. The average number of
causes decided per year was less than forty. But a few years ago the Supreme
Court of Pennsylvania, under Chief Justice Agnew, held a term of seven weeks,
and in that time disposed of 425 out of 450 cases on his docket. The contrast is
apparent."
This is captious criticism; the substitution of quantity for quality. Let the
curious reader compare the exhaustive and profoundly reasoned opinions of the
one period, with the Per Curiam decrees of the other, and decide whether he prefers breathless haste to careful argument and judicial deliberation.
ï~~288 THE SUPREME COURT OF THE UNITED STATES.
CHAPTER XV.
FOURTH EPOCH: 1835-1850. THE FIRST HALF OF TANEY'S JUDICIAL CAREER: GENERAL CHARACTER OF QUESTIONS DISCUSSED: SKETCH OF CHIEF JUSTICE
TANEY: SKETCHES OF JUSTICES BARBOUR, SMITH, CATRON, MCKINLEY, AND
DANIEL: LEADING CASES: CHANGE IN THE PRINCIPLES OF CONSTITUTIONAL
INTERPRETATION: STATE OF NEW YORK V. MIILN: BRISCOE v. BANK OF THE
COMMONWEALTH OF KENTUCKY: CHARLES RIVER BRIDGE CASE: LIMITATIONS
UPON THE DOCTRINE OF THE DARTMOUTH COLLEGE CASE: LAMENT OF JUSTICE
STORY: MISCELLANEOUS CASES: KENDALL V. UNITED STATES: RHODE ISLAND V.
MASSACHUSETTS: CORPORATION CASES: LIMITATIONS UPON THE POWERS OF THE
STATES: FLORIDA LAND CLAIMS: MARTIN V. WADDELL: SWIFT v. TYSON: THE
ESTABLISHMENT OF THE DOCTRINE OF A GENERAL COMMERCIAL JURISPRUDENCE: THE FUGITIVE SLAVE LAW: PRIGG V. COMMONWEALTH OF PENNSYLVANIA: CASES RELATING TO SLAVERY: MISCELLANEOUS CASES: THE GIRARD
WILL CASE: THE MYRA CLARK GAINES CASE: CASES OF INTER-STATE COMMERCE: THE LICENSE CASES: THE PASSENGER CASES: ADMIRALTY CASES:
WARING V. CLARK: CASES AFFECTING THE RELATIONS OF THE STATE TO THE
UNION: LUTHER v. BORDEN: GENERAL REVIEW OF WORK ACCOMPLISHED BY
THE COURT AT THIS TIME: SKETCH OF THE BAR OF THE SUPREME COURT.
E now enter upon the fourth great epoch in the
history of the Court; an era of individual views,
of doubts and queries, of numerous dissenting
opinions, of strict construction of the Constitution, of State
ascendency, of final submission to what Von Holst has called
the "Slaveocracy," an epoch bearing bitter fruit, and serving,
at the end of a quarter of a century, to bring into striking
prominence the value of Marshall's work, and the necessity
of appealing to his principles of interpretation if the integrity
of the Union was to be preserved.
A change in the constitutional doctrines of the Court
was to be expected. It was the natural and legitimate outgrowth of the times. The country was upon the verge of
ï~~THE OLD ORDER CHANGE TH.
289
that wonderful physical advance which was checked, but not
stifled, by civil war. Steam was about to be applied to locomotion on land as well as water. The sumpter mule, the
pack horse, and the Conestoga wagon were to be supplanted
by railroads; coal was mined; canals were dug; new highways were constructed and old ones improved; bridges were
thrown across streams and rival corporations contended about
tolls; post routes were extended; newspapers were distributed.
The energies of the States in the direction of internal improvements were fully aroused; banking institutions multiplied. The growth of cotton manufacture stimulated slavery
in the South and the factory system in the North. New and
vast regions were rescued from the wilderness; immense accessions of national territory were made: the tide of foreign
immigration was more than doubled; commercial or police
regulations were attempted. Jealousy of national institutions
became rife. The slave power contended for the mastery.
Amid the conflict of these forces old questions assumed
new aspects, or new questions crowded out the old. The legality and utility of the Bank of the United States, which had
been sustained in M'Culloch v. Maryland, were now denied.
President Jackson vetoed the Bill to recharter the Bank, and
denied the binding effect of that immortal judgment. "If the
opinion of the Supreme Court," said he, " covered the whole
ground of this act, it ought not to contest the co-ordinate
authorities of this government. The Congress, the Executive
and the Court must each for itself be guided by its own
opinion of the Constitution. Each public officer who takes an
oath to support the Constitution swears that he will support
it as he understands it, and not as it is understood by others."1
1 The question whether the Departments of the Government are independent of
each other, and can construe the Constitution for themselves is one which has led
19
ï~~290 THE SUPREME COURT OF THE UNITED STATES.
In this view he was supported by the advice of his AttorneyGeneral, who, in a few months, was to become Chief Justice
of the United States as the immediate successor of John
Marshall. The right of the States to make regulations as to
passengers from foreign ports; to incorporate banks to do
business in behalf of the State; to grant franchises, such as
bridges, ferries and the like, notwithstanding previous grants,
unless the first charter was exclusive in its terms; and the
right of the State corporations by comity to make contracts
and carry on business in other States-these and other questions arose, and were determined in such a manner that Judge
Story wrote that he was convinced that the doctrines and
opinions of the old court were losing ground, and that new
men and new opinions had succeeded.
Much of what was done, however, has proved of imperishable value. It was well that certain doctrines, particularly
those relating to legislative grants, should not be permitted
to run to dangerous extremes. It was well that the "Commerce clause" should be critically discussed, lest the powers
of the States to protect themselves against disease, pauperism,
disorder and crime should be too closely shorn. In this
field, Chief Justice Taney wrought better than he knew, and
to much interesting discussion. Attorney-General Bates, in a memorable opinion
written in 1861 (Opinions Attys.-General, Vol. X, p. 74) reached the conclusion that
the President was independent, and therefore, could lawfully suspend the privilege
of the writ of habeas corpus and refuse to obey the writ when issued by the Courts.
Mr. Robert G. Street, of Texas, in a paper read before the American Bar Association in August, 1883 (6 Report Amer. Bar Assn. 17), reaches the same conclusion,
and his views are reviewed in a paper of great ability by Mr. Win. M. Meigs, of
Philadelphia (19 "Amer. Law Review," 190 et seq.), which exhausts the learning of
the question. The results reached by these writers have not been accepted without
adverse comment, and an interesting discussion, in which several important distinctions are drawn, is to be found in a paper by Mr. Sydney G. Fisher, of Philadelphia (2I "Amer. Law Review," 21o et seq.).
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ï~~ROGER B. TANEY.
291
was singularly possessed of "that insight, that unconscious
sympathy with human progress, which induces a judge, while
scrupulously administering existing law, to expand and advance and develop it, commensurate with human needs."'
Roger B. Taney was commissioned as Chief Justice upon
the 15th of March, 1836. At this time he was nearly sixty
years of age, and, with the exception of a few brief periods
of public service, had devoted his great abilities with unrelaxed attention to active practice. In knowledge of technical
details in all departments of legal learning, in the mastery
of principles derived from constant and varied occupation in
the argument of causes in Courts of inferior and superior
jurisdiction, both State and national, he excelled every one of
his predecessors. He ascended the bench at a much later
period in life than they, and had long before his promotion
attained the rank of a veteran leader of the bar. Unlike
many of his associates, he had not the advantage of a previous judicial experience, but gave ample compensation in his
long familiarity with the tribunal over which he was called
to preside, having argued many important causes in opposition to Wirt, Webster, Berrien and Jones. Delicate in health,
but vehement in his feelings and passionate in temper, he
expressed himself at times with extraordinary vigor, and
acted with promptitude and decision. He was a man of the
highest integrity and of great simplicity and purity of character. By watchfulness of himself he had acquired perfect
self-control; his courage was unflinching; his industry was
great; and his power of analysis was unusual, even among
men remarkable for such a gift. His judicial style was admirable, lucid and logical, and, like his arguments, displayed
Address of Hon. Clarkson N. Potter at 4th Annual Meeting of American Bar
Association, August 18, I881.
ï~~292 THE SUPREME COURT OF THE UNITED STATES.
a thorough knowledge of the intricacies of pleading and nice,
ties of practice, as well as a thorough comprehension of un,
derlying principles. Wirt dreaded his "apostolic simplicity,"
and on one occasion spoke of him as a man of "moon-light
mind,---the moon-light of the Arctics, with all the light of
day without its glare." He adhered closely to the language
of the Constitution, never extending the words of the grant
upon the ground of convenience or necessity. He was always
anxious to protect the States in the full and unfettered exercise of their reserved powers. The Union, in his apprehension, was one of States which had ceded great prerogatives of
sovereignty for purposes either expressly stated in the Constitution or "necessary and proper" to the exercise of those
expressly granted. All that were not surrendered were retained in their original fulness and force. He read the Constitution, as, strange to say, Oliver Wolcott once feared that
Marshall would do, "as if it were a penal statute," and was
sometimes "embarrassed with doubts, of which his friends will
not perceive the importance." Yet, on occasion, his judgments bore the stamp of the broadest statesmanship. The
limitations upon the doctrine of the Dartmouth College case,
as expressed in the Charles River Bridge case,' have produced
the happiest results in freeing the States from the grasp of
monopolists, and in leaving them uncrippled in the exercise
of most important rights of sovereignty. While in the cases
of Waring v. Clark2 and The Genesee Chzief, in which the admiralty and maritime jurisdiction of the Federal Courts is
extended above tide-water on the Mississippi and to the entire chain of the Great Lakes and the waters connected with
them, his opinions are characterized by great judicial breadth
1 II Peters, 42o (1837). 2 5 Howard, 441 (1847).
3 12 Howard, 443 (185).
ï~~TANE Y'S EARLY CAREER.
293
of view. And in Ableman v. Booth' he was most emphatic in
the maintenance of the supremacy of Federal law. Upon this
fair record but one blot appears. The "damned spot" of the
Dred Scott decision will not "out," and though other illustrious names must share in the infamy of that fatal blunder,
yet the Chief Justice, by virtue of his eminence, must carry
the blood-stain on his ermine to eternity.
Roger Brooke Taney was born in Calvert County, Maryland, on the 17th of March, 1777. His ancestors, upon both
sides, were among the earliest settlers of the State, who in
the time of Cromwell sought repose and liberty of conscience
under the protection of Lord Baltimore's enlightened government. Their Catholic faith was inherited and faithfully kept
by their renowned descendant. He was educated at Dickinson College, Carlisle, in the State of Pennsylvania, of which
institution he became a student in 1792. In three years, he
was graduated, and began the study of the law at Annapolis,
in the office of Jeremiah T. Chase, who had been appointed,
but a short time before, Chief Justice of the General Court of
Maryland. Upon his admission to the bar he returned to his
native county, but was soon called into political life as a delegate to the General Assembly. Although scarcely twentythree years of age, he won distinction, but declining a reelection, removed to Fredericktown, where for twenty-two years
he devoted himself, with increasing success and growing reputation, to the practice of the law. He soon became employed
in many important causes, and, as the Reports show, was constantly in conflict with Pinkney, Winder, Martin, Harper and
Johnson. He entered every tribunal, civil and criminal, the
county courts, the courts of equity, the Court of Appeals, and
even Courts Martial. He was of counsel for General Wilkin
121 Howard, 5o6 (1858).
ï~~294 THE SUPREME COURT OF THE UNITED STATES.
son, Commander-in-chief of the United States Army, summoned before a military court upon grave and high accusations, and conducted the case to a successful issue. He incurred censure in defending a Methodist preacher for inciting
slaves to insurrection, but encountered successfully both popular excitement and judicial power. In 1816 he was chosen a
member of the Maryland Senate, and served for a period of
five years. In 1823 he removed to Baltimore, and disputed
with Wirt the sceptre of professional eminence which had
fallen from the dead hand of Pinkney. He now entered upon
the enlarged sphere of practice before the Supreme Court of
the United States. Here he argued Manro v. Almeida,1 an
admiralty case; Elting v. The Bank of the United Slates,2
involving a principle of legal ethics; Cassel v. Charles Carroll
of Carrollton,3 a claim under the original proprietary title of
Maryland; Brown v. Maryland,j involving the question of the
extent of the power to regulate foreign commerce, and United
States v. Gooding,5 an indictment for a violation of the Act
forbidding the Slave Trade. In 1827 Mr. Taney, though
politically opposed to the Governor and Council of Maryland,
was appointed Attorney-General of the State. This office he
resigned upon receiving, in June, 1831, an invitation to enter
the Cabinet of President Jackson as Attorney-General of the
United States. At this time he argued McLanahan v. The
Universal Insurance Company,6 a question of marine insurance;
Van Ness v. The Mayor of the City of Washington,' and the
cases of Tiernan et al. v. Jackson, The Patapsco Insurance
Co. v. Southgate, and Shepherd v. Taylor.8 His manner and
11 o Wheaton, 473 (1825). 5Wheaton, 460 (1827).
sII Ibid., 59 (1826). 6i Peters, 170 (1828).
'Ibid., 134 (1826). 14 Ibid., 232 (1830).
412 Ibid., 419 (1827). 85 Ibid, 580, 604, 675 (1831).
ï~~REMOVAL OF THE DEPOSITS.
style are described as impressive, logical, clear, calm, argumentative, simple and unostentatious, addressed to the reason
and not to the passions. Seven other cases were argued by
him before he ascended the bench, among which was the
leading case of Barron v. The City of Baltimore.'
As Attorney-General, Mr. Taney bore a prominent part
in the Nullification controversy, the question of the re-chartering of the United States Bank and the removal of the
deposits. From the beginping he was a decided and earnest
opponent of the Bank, and co-operated heartily with the President in his system of prompt and vigorous action against
that institution, so much so indeed, as to call forth the protests and the censure of a powerful majority in the Senate of
the United States, headed by Webster and Clay. When Mr.
Duane, then Secretary of the Treasury, after refusing to remove the deposits at the dictation of the President, refused to
resign his office, he was summarily removed, and Mr. Taney
was invited to take his place. Although reluctant to exchange his professional position for one purely political, he
felt called upon to accept what he deemed to be the post of
duty, and shortly after his entry signed the famous order for
the removal of the deposits from the Bank; or, more correctly
speaking, directed the collectors of revenue to cease making
deposits in the Bank, leaving the amount actually on deposit
to be drawn out at intervals, and in different sums, according
to the course of the government disbursements. In the following December, as Secretary of the Treasury, he communicated his reasons for the removal of the deposits, but.at the
instance of Mr. Clay a resolution of censure upon the action
of the President was adopted, as well as a declaration that
the reasons assigned by the Secretary were "unsatisfactory
17 Peters, 243 (1833).
ï~~296 THE SUPREME COURT OF THE UNITED STATES.
and insufficient." At the same time his nomination was
rejected, and he thereupon placed his resignation in the
hands of the President, and returned to Baltimore. In the
following January Mr. Justice Duvall resigned his office in
consequence of extreme deafness, due to the infirmities of
age, and the name of Mr. Taney was sent to the Senate
to supply the vacancy. It is known that Chief Justice
Marshall favored his appointment, but the Senatorial opposition was so strong that it failed of confirmation; a vote
of indefinite postponement being considered as equivalent to a
rejection. Thus matters stood, when in the following summer Chief Justice Marshall died. The complexion of the
Senate having changed in the meantime, upon the 28th of
December, 1835, President Jackson sent in the name of Mr.
Taney for the office of Chief Justice of the Supreme Court,
and the name of Philip P. Barbour, of Virginia, for the office
of Associate Justice. Mr. Clay again labored to defeat the
nomination, and made a bitter assault upon Mr. Taney, but
many years afterwards frankly apologized for it, and stated
that he sincerely regretted the occurrence. He went even further, and called him a fit successor of Marshall. The commissions of Taney and Barbour were dated March 15, 1836.
Philip P. Barbour was of Scottish descent, his great-grandfather having immigrated to this country, and been one of the
first settlers in the territory lying between the base of the
Blue Ridge and the Southwest mountains, in the State of
Virginia. His father, Thomas Barbour, was a man of inherited
wealth and a member of the old House of Burgesses, representing the County of Orange. He was one of the Signers, in 1769,
of the "Non-Importation Agreement," and was subsequently
elected to the Legislature. His character was highly spoken
of by Richard Henry Lee, who, in a letter to his brother, de
ï~~,'
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J
ï~~PHILIP P. BAIRB O UR.
297
clared that he was glad that Thomas Barbour was in our State
councils, for he was a truly intelligent and patriotic man. On
his mother's side Mr. Barbour was related to the distinguished
Judge Edmund Pendleton, who had been thought of at one
time by Washington as an appointee for the Supreme Court.
Philip Pendleton Barbour was born on the 25th of May, 1783,
but owing to disasters which overtook his father, did not receive the liberal education which his talents and early promise
would have justified. He was, however, sent to school, where
he exhibited great aptitude for the acquisition of languages,
and became remarkable for his mastery of Greek and Roman
literature. During the early part of 18oo he studied law, but
in October determined to visit Kentucky, where he began the
practice of his profession. A short time after, yielding to the
persuasions of friends, he returned to Virginia, and having
borrowed the necessary funds, spent one session at William
and Mary College. He subsequently renewed the practice of
the law and applied himself unceasingly to his profession.
In 1812 he was elected to the Assembly, where he continued
two sessions. In 1814 he was sent to Congress and served
until 1825. For many years he acted as Chairman of the
Naval and Judiciary Committees, and in 1821 was chosen
Speaker. So conspicuous had he become for legal knowledge,
that in 1825 he was offered the professorship of Law in the
University of Virginia, and was pressed by Mr. Jefferson to
accept it. He refused this station, however, and was appointed
a Judge of the General Court of Virginia. Two years afterwards he resigned his seat upon the bench, and was re-elected
without opposition to Congress. In 1829 he served with
Madison in the Convention called to amend the Constitution
of his State and presided over the deliberations of the Convention in a manner vhich is spoken of in the highest terms.
ï~~298 THE SUPREME COURT OF THE UNITED S TA TES.
In 1830 he accepted the position of District Judge for the
Eastern District of Virginia, declining the Chancellorship and
also the post of Attorney-General. He also refused nominations for a seat in the Court of Appeals, the Gubernatorial
chair and the Senate of the United States. As a Federal
Judge he won new distinction, and was called, in 1836, to
serve in the Supreme Court of the United States. While at
the Bar, he had argued before that tribunal, the celebrated case
of Cohens v. The Stale of Virginia, involving the question of
the appellate power of the Supreme Court over State tribunals.
His argument, although unsuccessful, is deserving of the
closest attention, inasmuch as it is characterized by great
subtlety and a display of analytical power. He contended
that the true construction of the Constitution limited the appellate power of the Supreme Court of the United States to
a revision of the judgments of Federal Courts alone, and that
although a Federal question was directly involved in the case
under argument, yet inasmuch as the suit had been brought
in a State court, and the defendant had not exercised his
right of removal into the Federal Courts, that no question
appeared upon the record of which the Supreme Court could
take cognizance.
His career as an Associate Justice was brief, but his
judgments sustained his reputation, and have elicited great
respect. He died suddenly of heart disease on the 24th of
February, 1841.
Under the Act of March 3d, 1837,1 the number of Justices
of the Supreme Court was increased to nine. Two nominations were made. William Smith, of Alabama, was commissioned upon the 8th of March, 1837, but declined the position,
owing, doubtless, to his advanced years. Mr. Smith was a
'5 United States Statutes at Large, Vol. II, p. 176, Chap. 34 -
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ï~~JOHN CATRON. 2
299
North Carolinian by birth, and had served as a member of
Congress, and as United States Senator from South Carolina for
an unexpired term, but was defeated for re-election by Robert
Y. Hayne because of his opposition to the views of Mr.
Calhoun.
The second nomination was that of John Catron, of Tennessee, who was commissioned upon the same day as Mr. Smith
and duly accepted. He was born in Wythe County, Virginia,
according to some authorities, and, according to others, in Pennsylvania, in the year 1786. He received a common school education, and in 1812 began the study of law in Kentucky, where
he removed at an early age. He had taken an active part in
the campaign of New Orleans under General Jackson, and in
1815 was admitted to the bar, after four years of study, in
which he devoted to his work sixteen hours a day. Shortly
after his admission he became State Attorney for his Circuit,
and upon settling in Nashville, in the year 1818, attained high
rank as a Chancery lawyer. He was chosen Judge of the Supreme Court of Tennessee in September, 1824, and served as
Chief Justice in the same Court from 1830 to 1836, when he was
retired under the provisions of the new Constitution of the
State. He owed his appointment to his highest judicial station
to the friendship of President Van Buren, who had been attracted by his great knowledge of the laws applicable to land
titles, a branch of unusual importance in the portion of the
Union which he represeinted. His power of juridical analysis
was remarkable, and he sought in all cases to weigh and examine
every authority cited by counsel, and accepted such only as
seemed to be founded upon principle. Although himself a noted
duellist, he exerted himself to the utmost to suppress the practice of duelling. He also became known for his efforts in enforcing the statutes of limitations in real estate actions. Although a
ï~~300 THE SUPREME COURT OF THE UNITED STATES.
Democrat in politics, in 186o and 1861 he vehemently opposed
Secession, exerting his influence with members of Congress
and others to prevent war. Owing to his Union sentiments
he was driven from his native State, but, in 1862, returned
to his Circuit, then the eighth, feeling that it was important that the judicial authority of the Union should
be maintained. He had arranged for a special term of
the Circuit Court to be held in the city of St. Louis, when
he found himself penned within the rebel lines in Tennessee, and
informed the District judge in Missouri that if he could effect his
escape he would be present. This he accomplished, and boldly
declared from the bench his approbation of all measures that
had been adopted to vindicate the authority of the United
States. Upon returning to Nashville, he was warned to leave
the city, and, responding to his wife's entreaties and the
promptings of loyalty, yielded to what he deemed to be a
duty. He died in 1864, at the age of four-score years, after
a life of usefulness and distinction. It was the testimony of
his brethren of the Bench that, in the learning of the Common Law and of Equity Jurisprudence, and especially in its
application to questions of real property, he had few equals
and hardly a superior. He was distinguished by strong,
practical, good sense, firmness of will and honesty of purpose.
He was candid, patient and impartial.
Upon the declinature of William Smith, the office of
Associate Justice was conferred upon John McKinley, of Alabama, who was commissioned in the recess April 22, 1837,
and re-commissioned upon confirmation, September 25 of the
same year. He was a native of Culpepper County, Virginia,
where he was born upon the Ist of May, 1780. Removing
to Kentucky, and subsequently to Alabama, he studied law,
and became prominent at the Bar of Huntsville, where he
ï~~4C
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ï~~
ï~~JOHN McKINLE Y.
301
soon acquired an influence in politics, which extended over
the entire State, being chosen a member of the House of
Representatives, and afterwards a member of the United
States Senate, in place of Henry Chambers (deceased), in
which body he served from 1826 until Ma ch 3, 1831, as a
Jeffersonian Democrat. Having removed to Florence during
his term, he was, on its conclusion, elected from the latter
place a member of the 23rd Congress, and served continuously until 1835, when he was again sent to the Senate of
the United States, from which he was transferred by President Van Buren to the Supreme Court. His death occurred
in 1852. Although little known, even to the profession, he
was described by Mr. Crittenden, then Attorney-General of
the United States, as a candid, impartial and righteous judge,
simple and unaffected in manners, bearing his honors meekly,
without ostentation or presumption, shrinking from no responsibility and fearless in the performance of duty, while
by Chief Justice Taney he was pronounced "a sound lawyer, faithful and assiduous in the discharge of his duties
while his health was sufficient to undergo the labor. He was
frank and firm in his social intercourse, as well as in the
discharge of his judicial duties, and no man could be more
free from guile or more honestly endeavor to fulfill the obligations which his office imposed on him."
Peter V. Daniel, of Virginia, was commissioned as Associate Justice, upon the 3d of March, 1841, upon the death
of Justice Barbour. He was a native of Stafford County, Virginia, where he was born in 1785. He received from the
ample means of his father the benefits of instruction by
a private tutor, and was subsequently graduated from Princeton, in 1805. He read law under the direction of Edmund
Randolph, the first Attorney-General of the United States,
ï~~302 THE SUPREME COURT OF THE UNITED STATES.
whose youngest daughter he afterwards married. In 1809
he became a member of the Legislature, a year after his
admission to the Bar. He also served as a member of the
Privy Council until the adoption of the new Constitution, in
1830. The office of Attorney-General of the United States,
vacated by the appointment of Mr. Taney to the Treasury
Department, was tendered to him by President Jackson, but
he declined the post, and it was conferred upon Mr. Benjamin F. Butler, of New York. Upon the transfer of Justice
Barbour from the District Judgeship to the Supreme Bench,
Mr. Daniel became his successor, and upon the death of Justice Barbour succeeded to the vacancy thus created, holding
the position until his death, May 31, 186o. He wielded the
pen of a ready writer, was a man of cultivated literary taste,
and retained through life his familiarity with the classics,
quoting Latin freely in his opinions. He was resolutely opposed to all extensions of national power and jurisdiction, and
with Mr. Justice Woodbury dissented from the opinion of the
Court in 'Varing v. Clark, extending the admiralty jurisdiction above tide-water upon the Mississippi, his dissent being
marked by a vigorous course of reasoning and a profound
knowledge of common law decisions, by which he sought to
restrict the admiralty jurisdiction. His views were marked
by a certain degree of eccentricity, and do not seem to have
been shared by other members of the Court. They appear
with particular prominence in the Passenger Cases and the
License Cases, reported by Howard. So thoroughly infused
was he with the doctrine of State sovereignty in its old sense,
and so determined to magnify the State, that his conception
of the grant to Congress of power to regulate interstate and
foreign commerce was neither large nor comprehensive. He
contributed but little to the development of the law and the
ï~~/ /
% a.
I!!
I
1'
I //,
I
ï~~
ï~~RE-ARGUMENT OF MARSHALL'S LAST CASES.
803
value of his opinions is mainly historical. The number of
his dissenting opinions is remarkable, and even where he concurred in the judgment pronounced, he rarely acquiesced in
the reasons assigned, preferring to state them in his own
way.
Such were the Associates who surrounded Chief Justice
Taney during the early part of his judicial career, and the
effect of the radical change which had been made in the composition of the Bench was immediately noticeable in the first
cases which came on for argument.
At the time of the death of Chief Justice Marshall three
cases of unusual interest and importance were pending, involving the question of the Constitutionality of State laws.
They had all been argued, and, as Judge Story intimates,
although he and Marshall had been of the opinion that in
each case the law criticized was unconstitutional, yet a marked
difference of opinion among the Judges having arisen, the
cases were assigned for re-argument. The re-argument took
place before Chief Justice Taney and Mr. Justice Barbour, who
appeared at the same time upon the Bench, and they, in association with Justices Thompson, McLean and Baldwin, constituted a majority of the Court whose judgment was exactly
opposite in its effect to the line of precedents established during Marshall's long term of service.
The first case was that of The Mayor of the City of New
York v. Miln.1 The State of New York had, by Act of Assembly, required the master of every vessel arriving in the
port of New York to report in writing respecting his passengers within twenty-four hours after arrival, and imposed a
penalty upon non-performance of this duty. It was argued
1 II Peters, o102 (1837).
ï~~304 THE SUPREME COURT OF THE UNITED STATES.
that the case was governed by the decisions in Gibbons v.
Ogden and Brown v. The State of Maryland, and that the
statute was obnoxious to the Constitutional provision vesting
in Congress the power to regulate commerce among the several States. It was held, however, by the majority of the
Court, in an opinion delivered by Mr. Justice Barbour, that
the statute did not amount to a regulation of commerce, but
was a mere regulation of police, and was, therefore, clearly
within the exercise of a power which rightfully belonged to
a State. It was shown that in the first case the theatre on
which the law operated was navigable water over which the
power to regulate commerce extended; but in the case before
the Court it was the territory of New York, over which the
State had an undisputed jurisdiction for every purpose of
internal regulation; besides, in the one case, the subject matter was a vessel; in the other, persons. "Persons," said the
Court, "are not the subjects of commerce, and not being imported goods, the reason founded upon the construction of
power given to Congress to regulate commerce, and prohibiting States from imposing a duty, does not apply."' Besides,
there was no analogy between a tax imposed upon the sale
of imported goods and the exercise of rights over persons
1This doctrine was controverted by the cases of Smith v. Turner and Norris v.
City of Boston, 7 Howard, 283 (1849), in which it was determined, by a vote of
five judges to four, that a State law imposing taxes upon the masters of vessels
bringing passengers and immigrants into the ports of such States was contrary to
the Constitution and void, the term "commerce" comprehending the intercourse
of persons or passengers. The opinion of Mr. Justice Wayne is unusually interesting, and gives an insight into the inside history of the discussion in the consultation room. See also Cooley v. The Board of Port Wardens of Philadelphia, 12
Howard, 300 (1851), in which it is held that the grant of power to Congress does
not deprive the States of the power to legislate on the subject of police and regulate pilotage fees and penalties for neglect or violation. It is interesting to note
that in all these cases the opinion of the Court was far from being unanimous.
ï~~BILLS OF CREDIT.
305
within the jurisdiction of the State. Justice Story dissented
absolutely. Justice Thompson, while conceding the supremacy
of an Act of Congress, contended that the State law was
valid until Congress intervened by an Act with which the
State law conflicted, and as no Act of Congress existed, no
such conflict arose.
A second departure from the principles of Constitutional
interpretation applied by Chief Justice Marshall is noticeable
in the case of Briscoe v. Bank of the Commonwealtk of Kenlucky,' and the conclusion reached is in direct conflict with
the case of Craz4g v. State of Missouri.2 The question arose
as to the meaning of the Constitutional prohibition upon the
States against emitting bills of credit, and it was held, in an
opinion by Justice McLean, that inasmuch as there was no
limitation in the Constitution of the United States upon the
power of a State to incorporate a Bank, such a power was
incident to sovereignty, and inasmuch as the bills issued by
the Bank were not bills of credit within the meaning of the
Constitution,-that is, issued by a State, on the faith of the
State, and designed to circulate as money,-the State law was
a valid exercise of authority, and was therefore sustained.
Justice Story again dissented, in terms of lament over the
death of Marshall.
The third instance presented a striking contrast with the
Dartmouth College case and Fletcher v. Peck in the almost
equally celebrated case of The Charles River Bridge v. The
Warren Bridge.3 It is the first expression of opinion upon
a Constitutional question by Chief Justice Taney, and is the
first defeat sustained by Daniel Webster as counsel upon a
question of Constitutional law.
II Peters, 257 (1837). 24 Peters, 4o10 (1830).
s II Peters, 420 (1837).
20
ï~~806 THE SUPREME COURT OF THE UNITED STATES.
As far back as 1650 there had been granted to Harvard
College by the Legislature of the province of Massachusetts
power to dispose of the ferry from Charlestown to Boston over
the Charles River. The College received the profits from the
ferry until 1785, when a Company was duly incorporated,
under an Act of the Legislature, to build a bridge in place of
the ferry and to receive tolls, the Company agreeing to pay
to the College an annual rental which was ultimately to cease,
and thereupon the bridge was to become the property of the
State. The bridge was built and the rights of the College
had still a considerable period to run when, in the year 1828,
the Legislature incorporated another Company known as the
Warren Bridge Company with power to erect a second structure over the same river between the same points in close
proximity to the original bridge, with power to take tolls and
ultimately to become free. The older corporation sought by
injunction to restrain the exercise of the franchises of the
younger company, and the decision of the State Court being
in favor of the validity of the law conferring the privileges
upon the defendants, the case was removed to the Supreme
Court of the United States upon the ground that the State
had exceeded her powers under the Constitution and had
passed an act impairing the obligations of a contract. Much
stress was laid in the argument upon the decisions of Chief
Justice Marshall's time, and particularly the cases above referred to; but the decision of the Court sustained the sovereignty of the State in the exercise of its rights even though
they might incidentally impair the value of a previous charter
or contract. Chief Justice Taney based his opinion upon the
broad principle that public grants were to be construed strictly,
and that nothing passed by implication. Inasmuch as there
was no express grant of an exclusive privilege to the plain
ï~~THE CHARLES RIVER BRIDGE CASE.
307
tiffs in error, an implied contract to that effect could not be
inferred. "We cannot," said he, "deal thus with the rights
reserved to the States and by legal intendments and mere
technical reasoning take away from them any portion of that
power over their own internal police and improvement which
is so necessary to their well-being and prosperity." No implied
contract, he argued, could be created between the State and
the Company from the very nature of the instrument in which
the Legislature took the pains to use words which disavowed
any intention on the part of the State to make such a contract; and in vindicating the reasons of public policy which
lay at the basis of his judgment, he said:
"If this Court should establish the principles now contended for,
what is to become of the numerous railroads established on the same line
of travel with turnpike companies, and which have rendered the franchises of the turnpike corporations of no value? Let it once be understood that such charters carry with them these implied contracts, and
give this unknown and undefined property in a line of travelling, and you
will soon find the old turnpike corporations awakening from their sleep,
and calling upon this Court to put down the improvements which have
taken their place. The millions of property which have been invested in
railroads and canals, upon lines of travel which had been before occupied
by turnpike corporations, will be put in jeopardy. We shall be thrown
back to the improvements of the last century, and obliged to stand still
until the claims of the old turnpike corporations, shall be satisfied, and they
shall consent to permit these States to avail themselves of the lights of
modern science, and to partake of the benefit of those improvements
which are now adding to the wealth and prosperity, and the convenience
and comfort, of every other part of the civilized world."
The dissenting opinion of Mr. Justice Story, concurred in
by Mr. Justice Thompson, is one of the most able and elaborate of his efforts. So despondent did he become of the fate
of Federal supremacy that he wrote to Mr. Justice McLean:
ï~~808 THE SUPREME COURT OF THE UNITED STATES.
"There will not I fear ever in our day be any case in
which a law of a State or Act of Congress will be declared
unconstitutional; for the old Constitutional doctrines are fast
fading away, and a change has come over the public mind
from which I augur little good." And even Chancellor Kent
in a letter to Judge Story wrote: "I have lost my confidence
and hopes in the Constitutional guardianship and protection
of the Supreme Court."'
An able criticism of the decision of the majority of the
Court appeared in the public prints, in which the writer,
alluding to the three cases first considered, says: "In reviewing these decisions we perceive at once an altered tone and a
narrower spirit, not only in Chief Justice Taney, but even in
some of the old associates of Marshall, when they handle
Constitutional questions. The change is so great and so ominous that a gathering gloom is cast over the future. We
seem to have sunk the Constitution below the horizon, to
have lost the light of the sun, and to hold on our way per
incertam lunam sub luce maligna."
At this distance of time it is possible to form an unprejudiced judgment of the matter, and even the most ardent advocate of Federal supremacy can scarcely regret the decision of the
Court in the Bridge case. It has enabled the States to push
forward the great improvements by which the surface of the
earth has been subjected to the dominion of man. The principle of the Dartmouth College Case was limited in its application before it had been carried to an extreme which would have
left the State governments in possession of little more than
the shell of legislative power. All the essential attributes of
State sovereignty would have been parcelled out without the
1 Life and Letters of Story, Edited by W. W. Story, Vol. II, p. 270. See also
elaborate commentary in the "New York Review," (April, 1838.) Vol. II, p. 372.
ï~~DIVERSITY OF CASES.
809
possibility of reclamation, through recklessness or something
worse, among a crowd of applicants for monopolistic privileges.)
Cases of great variety now presented themselves, displaying in a marked manner the ability and professional training
of the Court. In United States v. Laub,2 in an action on a
treasury transcript, where the defendant's vouchers had been
destroyed by fire, a nice question of evidence was discussed,
and the production of secondary proof permitted; in McKinney v. Carroll," it was held that to give the Supreme Court
of the United States jurisdiction under the 25th section of
the Judiciary Act, in a case brought from the highest Court
of a State, it must be apparent in the record that the State
Court did decide in favor of the validity of a statute of the
State, the Constitutionality of which was brought into question;
but when the decision of a State Court was against the validity
of a State statute, as contrary to the Constitution, a writ of
error would not lie.4 In United States v. Coombs,5 the Court
dealt with an indictment for stealing merchandise belonging
to a wrecked ship, the goods being above high water mark,
and held that such an act could be punished, even though
done on land, because the offence tended to interfere with,
obstruct and prevent commerce and navigation, which were
placed by the Constitution under the protection of Congress.
SSee "Constitutional Development in the United States as influenced by Chief
Justice Taney," by George W. Biddle, Esq., of Philadelphia. "Constitutional History as seen in American Law," p. 133.
2 12 Peters, i (1838). See also Williams v. United States, I Howard, 290 (1843).
12 Peters, 66 (1838).
* Commonwealth Bank of Kentucky v. Griffith et al., 14 Peters, 56 (1840). So
also Walker v. Taylor et al. 5 Howard, 65 (1847); Commercial Bank of Cincinnati v.
Buckingham's Executors, Ibid., 317 (1841).
5 12 Peters, 72 (18381.
ï~~310 THE SUPREME COURT OF THE UNITED STATES.
In the Mayor, etc., of Georgetown v. The Alexandria Canal
Co., et al.' they declined to prevent, by injunction, the construction of an aqueduct across the Potomac River, and in
Garcia v. Lee,' a case arising under a Spanish grant, held
that a boundary line determined on as the true one by the
political departments of the government must be also recognized as the true one by the judicial department.
A similar principle was announced in Williams v. The
Suffolk Insurance Company,3 where it was held that when the
executive branch of the Government, which is charged with
the foreign relations of the United States, shall, in its correspondence with a foreign nation, assume a fact in regard
to the sovereignty of any country, it is conclusive on the
judicial department.
A case now arose involving an interesting political question, and attracting public attention. Amos Kendall, the Postmaster General, had been directed by an Act of Congress to
credit certain mail contractors with the amount of a sum of
money awarded by the Solicitor of the Treasury as due to
them under contracts with the Government. The Postmaster
General refused to sanction the award, on the ground that the
Solicitor had exceeded his authority. The mail contractors
applied to the Circuit Court for a mandamus to compel the
Postmaster General to pay them the award. This being granted,
the cause was brought up on writ of error.4 It was contended
that the proceedings were intended to enforce the performance
of an official duty and were a direct infringement on the Executive department; that the Postmaster General was alone
subject to the direction and control of the President. These
propositions were denied by the Court, the Chief Justice and
1 x2 Peters, 91 (1838). 2Ibid., 511xx (1838). $I3 Peters, 415 (1839).
4Kendall v. The United States, 12 Peters, 524 (1838).
ï~~DISCRETION OF EXECUTIVE OFFICERS.
311
Justices Barbour and Catron dissenting. It was held that the
mandamus did not seek to direct or control the discharge of
an official duty, but to enforce the performance of a ministerial act, which neither the Postmaster General nor the President had any authority to deny or control. The President
was not invested with a dispensing power; such a doctrine
could not be tolerated; it would clothe the President with a
power to control the legislation of Congress, and paralyze the
administration of justice. Such a construction of the Constitution would be novel and entirely inadmissible. In interesting contrast with this case is that of Susan Decatur, the
widow of Captain Stephen Decatur, against James K. Paulding, the Secretary of the Navy,1 in which an application for a
mandamus, commanding the Secretary to pay a pension and
arrearages, had been refused by the Circuit Court of the District of Columbia. In sustaining the judgment the Court,
through the Chief Justice, held that as it was a matter in
which the Secretary must exercise a discretion, and was not a
mere ministerial act, the Court could not guide or control him
in the performance of his official duties. While still later, in
Kendall v. Stokes,2 where a suit had been brought against the
Postmaster General for damages in consequence of acts which
the Court in its first decision had held to be official and not
ministerial, the principle was asserted that a public officer
acting from a sense of duty, in a matter where he was required to exercise discretion, could not be held liable to an
action for an error of judgment.
So too, in Ex parte Hennen,3 it was held that the Supreme
Court could have no control over the appointment or removal
of a clerk of the District Court, or entertain any inquiry into
} Decatur v. Paulding, 14 Peters, 497 (1840). '23 Howard, 87 (1845).
S1I3 Peters, 230 (1839).
ï~~812 THE SUPREME COURT OF THE UNITED STATES.
the grounds of the removal. "If the judge of the District
Court be chargeable with any abuse of power the Supreme
Court is not the tribunal to which he is amenable."
In all of these cases it is manifest that the Court had no
disposition to encroach upon the proper jurisdiction of other
departments of the government, or other tribunals.
In McElmoyle v. Cohen1 it was held that though the
judgment of a Court in one State is conclusive in another
State upon the merits, yet it does not carry with it sufficient
efficacy to be enforced by execution. It must be reduced to a
new judgment in the new forum, and is subject to all laws
relating to the remedy provided there. Hence the plea of the
Statute of Limitations in an action instituted in one State on
a judgment obtained in another is a plea to the remedy, and
the lex fori must prevail.
About this time a controversy arose between the States
of Rhode Island and Massachusetts 2 relative to the boundary
line between them, in which Massachusetts was finally successful. Although the Court, through Mr. Justice Baldwin, sustained its jurisdiction to hear and determine a controversy between States, on the ground that the suit was brought to try
a right of property in the soil and other rights properly the
subject of judicial cognizance, yet the Chief Justice dissented
from this view, and contended that this power does not extend to a suit brought to determine political rights, sovereignty
and jurisdiction being questions outside of the pale of judicial
authority, and not, therefore, within the grant of judicial
power contained in the Constitution.
In 1839 the case of the Bank of Augusta v. Earle,3 and
113 Peters, 312 (1839).
2 The State of Rhode Island v. The State of Massachusetts, 12 Peters, 657 (x838);
Ibid., 4 Howard, 591 (1846). 3 13 Peters, 519 (1839).
ï~~COMITY OF STA TES.
313
two other cases depending upon the same principle,1 came
before the Court, presenting the sovereignty of the States in
a new aspect,-in relation to their authority to create corporations, and the rights and powers of the corporations of one
State to act within the territorial jurisdiction of another. It
was clear that the law of comity which prevails between independent nations, and which entitles the corporations created
by one sovereignty to make contracts in another and to sue
in its Courts, prevailed among the States of the Union.
"The States of the Union," said the Chief Justice, "are sovereign States, and the history of the past and the events
which are daily occurring furnish the strongest evidence that
they have conducted towards each other the laws of comity
in their fullest extent." In the Tombigbee Railroad Company
v. Kneeland,2 it was held, in confirmation of this principle,
that a contract made in Alabama by the agents of a corporation created by the laws of Mississippi was valid and must
be sustained.
The status of a corporation was further considered in
The Commercial and Railroad Bank of Vicksburg v. Slocumb,3
where Mr. Justice Barbour, in affirming Strawbridge v. Curtiss4 and Bank of the United States v. Deveaux,5 held that,
while a corporation aggregate was not a citizen as such, and
therefore could not sue in the Courts of the United States
as such, yet the Court would look beyond the mere corporate
character to the individuals of whom it was composed, and if
they were citizens of a different State from the party sued,
they were competent to sue in the Federal Courts. But all
1 Bank of the U. S. v. Primrose, 13 Peters, 519 (1839). Railroad Co. v. Earle,
Ibid. 519 (1839). 24 Howard, 16 (1846).
3 14 Peters, 6o (1840). See also Irvine v. Lowry, Ibid. 293 (184o).
43 Cranch, 267 (18o6). 5 Cranch, 61i (18o9).
ï~~814 THE SUPREME COURT OF THE UNITED STATES.
the corporators must be citizens of a different State from the
party sued.
But in the case of the Louisville, Cincinnati and Charleston R. R. Co. v. Letson,1 the important principle was established that a corporation is to be deemed an inhabitant of
the State creating it, capable of being treated as a citizen for
all the purposes of suing and being sued.
The doctrine was expanded from time to time2 until the
Court reached the point, which has proved so satisfactory in
practice, that a naked averment that a certain company was
a citizen of a State was sufficient to give jurisdiction to the
Federal Courts, because the company was incorporated by a
public statute of the State which the Court was bound to
notice judicially.3 And still later it was determined that a
suit by or against a corporation in its corporate name must
be presumed to be a suit by or against citizens of the State
which created it, and no averment or evidence to the contrary is admissible for the purpose of withdrawing the suit
from the Federal jurisdiction.4
The powers of a corporation beyond the territorial limits
of the sovereignty which created it were still further considered in Runyan v. The Lessee of Coster et al5 A New York
corporation was held to be capable of holding lands in the
State of Pennsylvania subject to be divested by proceedings in
due course of law, instituted by the Commonwealth alone and
for its own use. Every power which a corporation exercises in
another State depends for its validity upon the laws of the sov2 Howard, 497 (1844).
'Railroad Co. v. Kneeland, 4 Howard, 16 (1846).
3Covington Drawbridge Co. v. Shepherd, 20 Howard, 227 (1857).
4 Ohio & Mississippi R. R. Co. v. Wheeler, I Black, 286 (1861).
5 14 Peters, 122 (1840).
ï~~LIMITED POWERS OF THE STATES.
315
ereignty in which it is exercised; and a corporation can make
no valid contract without the sanction, express or implied, of
such sovereignty unless a case should be presented in which
the right claimed should appear to be secured by the Constitution of the United States.
The pendulum was not permitted, however, to swing too
far in any one direction. An illustration of the limited
powers of the States is presented in Suydam and Boyd v.
Broadnax and Newton,1 where an act of insolvency, executed
under the authority of the State of Alabama, was held to be
no bar to a recovery in an action brought in the Circuit Court
of the United States for the Alabama District, upon a contract made in New York. No State, however sovereign, could
deny the right to recover upon contracts made outside of its
own limits. Such contracts would still exist and continue to
be enforceable according to the lex loci contractus.
A few years later the case of Bronson v. Kinzie,2 raised
the question of the legality of a law of the State of Illinois
passed subsequent to a mortgage contract providing that the
equitable estate of a mortgagor should not be extinguished
for twelve months after a sale under a decree of chancery
and that there should be no sale unless two-thirds of the
amount at which the property had been valued by appraisers
should be bid therefor. The law was held to be null and
void on the ground that it violated a Constitutional provision prohibiting the passage of any law impairing the obligation of a contract. From this judgment Mr. Justice McLean dissented, drawing the somewhat subtle distinction that
the State law acted upon the remedy and not upon the contract.
This case was followed and confirmed within a year in
1 14 Peters, 67 (1840).
2 I Howard, 311 (1843).
ï~~316 THE SUPREME COURT OF THE UNITED STATES.
McCracken v. Hayward. And in two cases, decided in 1848,
a State law, prohibiting banks, previously empowered by charter, from transferring bills and notes, was held to be unconstitutional, because it impaired the obligation of a contract.2
A singular case now arose involving the relations to each
other of the different counties constituting the District of
Columbia, and it was held that they did not occupy the
relation borne by the States of the Union to each other. As
they constitute together one territory, united under one territorial government, the residents of the county of Alexandria
are not beyond seas in relation to the county of Washington,
even though on a proper construction of the Maryland statute
of limitations the words "beyond seas" are equivalent to the
words without the jurisdiction of the State.'
In The United States v. Morrzs,' a question arose upon
an indictment for a violation of an act prohibiting the slave
trade, and the Court held that though in expounding a penal
statute, it will not be extended beyond the plain meaning of
its words, yet the evident intention ought not to be defeated
by a forced or over-strict construction. Hence it was not
necessary to constitute the offence described in the Act of Congress that there should have been an actual transportation or
carrying of slaves in a vessel of the United States in which
the prisoner served; it was sufficient if the vessel were engaged
and under contract for the purpose.
The session of 1841 was memorable for the discussion
and decision of several cases of unusual importance and mag1 2 Howard, 6o8 (1844).
2 Planters' Bank of Mississippi v. Sharp et al.; Baldwin et al. v. Payne et al.,
6 Howard, 301 (1848).
' Bank of Alexandria v. Dyer, 14 Peters, 141 (184o).
414 Peters, 464 (1840).
ï~~SLA VE CASES.
317
nitude. Among them was the Florida Land Claim, reported
under the title of Mitchel v. The United Slates,' involving the
title to the Fortress of St. Mark, the most ancient structure
in America, antedating by seven years the Massacre of St.
Bartholomew. Another is the case of the Amistad, 2 in which
free negroes, who had been kidnapped in violation of the laws
of Spain denouncing the slave trade as a heinous offence, were
restored to freedom through the efforts of the venerable exPresident, John Quincy Adams, who, after an absence of nearly
forty years from the bar, re-appeared as one of the counsel in
behalf of the African appellees. The case of Groves v.
Slaughter,3 was one on the determination of which more than
$3,000,000 depended, at that time a sum of much magnitude,
but it is chiefly interesting as involving a discussion whether
the grant of power to Congress to regulate commerce among
the States vests in Congress power to regulate the traffic in
slaves among the different States, and if so, whether it does
not carry with it an implied prohibition on the States from
making any regulations on the subject. The Constitution of
Mississippi, adopted in 1832, had prohibited the introduction
of slaves into that State after May I, 1833 as merchandize or
for sale. No law to enforce this constitutional provision was
passed until 1837. In 1835, however, a non-resident had imported certain slaves for sale, and defence was taken to a note
given by the purchaser in payment upon the ground that it
was void, as in violation of the Constitutional provision. It
was held that the Constitution of the State was not self-enforcing, and as the Act carrying its provisions into effect was
subsequent in date to the note, that the sale was valid, and
that recovery could be had. Justices Story and McKinley dis115 Peters, 52 (1841). 215 Peters, 518 (1841).
3 15 Peters, 449 (1841).
ï~~318 THE SUPREME COURT OF THE UNITED STATES.
sented. Chief Justice Taney and Mr. Justice McLean believed
that the power over slavery belonged exclusively to the States,
that it was local in its character, and that the action of the
State upon the subject could not be controlled by Congress
either by its power to regulate commerce, or by virtue of any
other power conferred by the Constitution. Justices Story,
Thompson, Wayne and McKinley were of the opinion that
the provision for the regulation of commerce did not interfere
with the provision of the Constitution of Mississippi.
Another phase of the same question arose in Rowan et al.
v. Runnels.' The Constitution of Mississippi went into operation May I, 1833, and on the 13th of May of that year, an
act was passed to give effect to its provisions. The Court
adhered to the construction of the Constitution stated in
Groves v. Slaughter, and enforced contracts made between
the days mentioned, although the Courts of Mississippi had,
since that decision declared such contracts to be void. "We
can hardly be required," said the Chief Justice, "by any
comity or respect for the State courts to surrender our judgment to decisions since made in the State, and declare
contracts to be void which upon full consideration we have
pronounced to be valid. Undoubtedly this court will always
feel itself bound to respect the decisions of State Courts, and
from the time they are made will regard them as conclusive
in all cases upon the construction of their own Constitutions
and laws. But we ought not to give to them a retroactive
effect, and allow them to render invalid contracts entered into
with citizens of other States, which in the judgment of this
Court were lawfully made."
Mr. Justice Daniel dissented, holding that the construc15 Howard, 134 (1847). These cases were again affirmed in Sims v. Hundley,
6 Howard, I (1848).
ï~~FISHERY RIGHTS.
819
tion of a State Constitution by the State tribunals was conclusive, and it was wholly immaterial when the decision was
made.
In the case of Martin et al. v. The Lessee of Waddell, a
case brought up from New Jersey, and involving immense interests, the entire proprietary right of the State under the
grant of Charles II to the Duke of York, subsequently vested
in the East Jersey Proprietors, was elaborately traced, and applied to a proprietary grant of a certain portion of the bed
of the Raritan River and Bay, the grantee claiming an exclusive right of fishing for oysters. It was held by the
Court that the navigable waters of New Jersey had passed
to the Duke of York and to the Proprietors, but they passed
as a part of the prerogatives and rights annexed to the
political powers conferred upon the Duke, and not as a private property, to be parceled out and sold to individuals;
that the right of fishery was a part of those prerogative
rights, and that after the period of the Revolution the prerogatives and regalities which had formerly belonged to the
crown became immediately and rightfully vested in the State,
and that, therefore, any exclusive right on the part of a citizen to fish in the navigable waters of New Jersey was declared to be unfounded.
About this time the case of Swzft v. Tyson2 came before
the Court, in form merely an action upon a bill of exchange
accepted in New York, instituted by the holder, a citizen of
the State of Maine, in the Circuit Court of New York, but
containing a fruitful germ which has expanded into a system
of general commercial jurisprudence, the establishment of
which has provoked much adverse comment and discussion,
116 Peters, 367 (1842).
2 1 6 Peters, 1 (1842).
ï~~320 THE SUPREME COURT OF THE UNITED STATES.
both among writers and the State judges, it being asserted by
one of them, and he not the least able of our jurists, that
since "the unfortunate mis-step that was made in the opinion
in Swzft v. Tyson, the Courts of the United States have persisted in the recognition of a mythical commercial law, and
have professed to decide so-called commercial questions by it,
in entire disregard of the law of the State where the question
arose." 1
The acceptance and endorsement of the bill were admitted, and the defense was rested on an allegation that the
bill had been received in payment of a pre-existing debt, and
that the acceptance had been given for lands which the acceptor had purchased from the drawer of the bill to which
the drawer had no title, and further that the quality of the
lands had been misrepresented, and the purchaser imposed
upon by the fraud of the drawer. The bill accepted had
been received bona fide and before maturity. It was held in
the lower court that the later decisions of the Supreme Court
of New York had established that the receipt of a note in
payment of a pre-existing debt, was not such a receipt in the
usual course of trade as to give the endorsee any rights on
the paper beyond those against the endorser; and it was contended that the Thirty-fourth section of the Judiciary Act of
1789, which declared "that the laws of the several States, except where the Constitution, treaties or statutes of the United
States shall otherwise recognize 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," forbade the
Supreme Court from departing from the view taken by the
State tribunal. It was ruled by Mr. Justice Story that the
1 Mr. Justice Mitchell in Forepaugh v. R. R. Co., 128 Penna. St., 228 (1889.)
ï~~COMMERCIAL JURISPR UDENCE.
821
holder was not affected by equities between the original parties; that the Thirty-fourth section of the Judiciary Act had
been uniformly limited in its application to State laws strictly
local; that is to say, to the positive statutes of the State,
and the construction thereof adopted by the local tribunals,
and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other
matters immovable and in tra-territorial in their nature and
character, but that it does not extend to contracts and other
instruments of a commercial nature, the true interpretation
and effect whereof are to be sought not in the decisions of the
local tribunals, but "in the general principles and doctrines
of commercial jurisprudence." This language has become the
foundation of the doctrine that even in suits where the Federal jurisdiction is invoked solely on the ground of the citizenship of the parties, and not because of any distinct Federal question, the Federal courts will decide the point of law
involved according to their own view of general jurisprudence,
although it lead to an absolute lack of recognition of precedents in the State courts in which the controversy arose.1 It
was some time, however, before so definite a result was
reached. In 1845 the Court through Mr. Justice McLean
applied this doctrine to the construction of a will, and said:
" The mere construction of a will by a State Court does not,
as the construction of a statute of the State, constitute a rule
of decision for the Courts of the United States." From this
Mr. Justice McKinley dissented in a powerful opinion in
which he pointed out the probable consequences of the doctrine, the contests that would ensue, and the dangers to the
1See "American Law Review," Vol. VIII., 452, "Decisions of the Federal Courts
on Questions of State Law," by W. M. Meigs, of Philadelphia. See also Hare on
Constitutional Law, Vol. II., 11o7, 1117, and Lecture 51 passim.
21
ï~~822 THE SUPREME COURT OF THE UNITED STATES.
peace and harmony of the people of the United States. In
this view Chief Justice Taney concurred.'
But the most important of all the cases considered at
this time was that of Prigg v. Commonwealth of Pennsylvania 2
and it afforded an opportunity to Judge Story, one of the last
in his long judicial career, of declaring a State law unconstitutional and void. Although the judgment of the Court was
unanimous, it is to be remarked that the Chief Justice and
several of his associates did not concur in the reasoning and
principles laid down in the opinion of the majority.
Prigg, a citizen of Maryland, had taken a fugitive slave
by force from Pennsylvania, without the certificate required
by the Act of Congress of 1793, and had carried her to the
State of Maryland to her owner. For this act he had been
indicted under a law of the State of Pennsylvania, passed for
the purpose of giving effect to the provisions of the State
Constitution relative to fugitives from labor, and to prevent
kidnapping, which declared that the taking and carrying away
of any negro or mulatto by force or violence from the State
should be deemed a felony punishable by fine and imprisonment. The act also provided a mode for the rendition of
fugitive slaves by the State authorities. The fugitive slave
had been brought by virtue of this law before a Pennsylvania
magistrate, who refused to take jurisdiction, and Prigg had
thereupon of his own will carried her off to Maryland, acting
under the authority of the owner. It was held that the
Pennsylvania law was unconstitutional, because the Constitution of the United States, in providing that fugitives should
be delivered up, placed the remedy exclusively in Congress,
I Lane v. Vick, 3 Howard, 464 (1845). See contra the earlier cases of Jackson v. Chew, 12 Wheaton, 153 (1827), and Henderson et ux. v. Griffin, 5 Peters, 151
(1831). 2 16 Peters, 539 (1842).
ï~~SLAVE CASES.
323
and therefore the States were prohibited from passing any
law upon the subject, whether Congress had or had not legislated upon the question. Although concurring in the result, the Chief Justice dissented from the reasons given by
the majority of the Court, stating that the Constitution contained no words prohibiting the several States from passing
laws to enforce the right. It is true that they were in express terms forbidden to make any regulation which could
impair it, but there the prohibition stopped, and he saw no
reason, in the absence of any express prohibition, for establishing a different rule, where, by national compact, the right
of property in slaves was recognized as an existing right in
every State of the Union.
Justices Thompson and Daniel also delivered opinions to
the same effect, but concurred in the judgment of reversal;
on the ground that Congress by the act of 1793 had exercised its Constitutional power, and as the Pennsylvania law
conflicted with it, the State law was null and void. We find
interesting fragments of a state of society that has perished,
in Williams v. Ash,1 a solemn adjudication that the bequest
of freedom to a slave is a specific legacy, and in Rhodes v.
Bell2 that the purchase of a slave in one county in the District of Columbia and sale in another entitles him to freedom,
and in Adams v. Roberts3 where an ancient manumission
deed was admitted in evidence on the trial of a petition for
freedom by the child of the manumitted slave. In Jones v.
Van Zandt4 the question of what facts amounted to a "harboring" of a fugitive slave, was considered, and it was held
that the fugitive slave law of 1793 was constitutional and not
in conflict with the Ordinance for the government of the
1 1 Howard, I (1843). 2 2 Howard, 397 (1844). 32 Howard, 487 (1844).
'5 Howard, 215 (1847).
ï~~324 THE SUPREME COURT OF THE UNITED STATES.
Territory Northwest of the River Ohio. The Court refused to
notice "the supposed inexpediency and invalidity of all laws
recognizing slavery or any right of property in man. That,"
said Mr. Justice Woodbury, "is a political question, settled
by each State for itself; and the Federal power over it is
limited and regulated by the people of the States in the Constitution itself, as one of its sacred compromises, and which
we possess no authority as a judicial body to modify or overrule."
Passing from Constitutional questions to those cases which
illustrate the boundless variety of topics discussed, we find
the doctrine laid down by Lord Camden examined and confirmed: that a court of equity, which is never active in relief
against conscience or public convenience, has always refused
its aid to stale demands, where the party has slept upon his
rights for a great length of time. Nothing but conscience,
good faith, and reasonable diligence can call the court into
activity. Where these are wanting, the court is passive and
does nothing; laches and neglect are always discountenanced;
and therefore, from the beginning of equity jurisdiction there
was always a limitation of suits.1
In Porterfield's Executors v. Clark's Heirs, a question
arose under the Virginia statutes establishing a land office,
and the boundaries of the territory appropriated to the Cherokees, as fixed by treaties, were historically examined by Mr.
Justice Catron in one of those opinions discussing Western
titles by which he justified his well established reputation as
a master of one of the most intricate and perplexing systems
of local real estate law.
In Vidal et al. v. Girard's Executors,3 elaborately argued
1Bowman et al. v. Wathen et al., I Howard, 189 (1843).
22 Howard, 77 (1844). 8 2 Howard, 127 (1844).
ï~~THE GIRARD WILL CASE.
325
by Webster and General Walter Jones on the one side, and
by Horace Binney and John Sergeant on the other, the law
of public charities, of superstitious uses, and of the right of a
testator. to control the direction of his gift were most exhaustively considered by Mr. Justice Story in an opinion replete
with interest. Mr. Binney won the most splendid of his professional triumphs, and obtained the crown which he wore with
so much modesty.1 The testator, Stephen Girard, whose name
has since become, through the success of Binney, a synonym for
charity, had excluded all ecclesiastics, missionaries and ministers
of every sort from holding or exercising any station or duty in
the college he sought to found, or even visiting the same; and
had limited the instruction to be given to the scholars to pure
morality, general benevolence, a love of truth, sobriety and industry. These provisions were bitterly assailed by Webster,
who declared, in terms which show how little knowledge of
the future is vouchsafed even unto the wisest: "No good can
be looked for from this college. If Girard had desired to
bring trouble, and quarrel, and struggle upon the city, he
could have done it in no more effectual way. The plan is
unblessed in design and unwise in purpose. If the court
should set it aside, and I be instrumental in contributing to
that result, it will be the crowning mercy of my professional
life." To this the Court, through the lips of Story, replied:
"The testator does not say that Christianity shall not be
'It was during the evening of the day upon which Mr. Binney closed his triumphant argument, that President Tyler offered the place made vacant in the
Supreme Court by the death of Mr. Justice Baldwin, first to Mr. Sergeant, and then
to Mr. Binney. Both declined to accept it, each alleging that he was over sixty
years of age, and had determined to accept no public office. Each requested that
the place be offered to the other, and that the fact he had declined and his reasons
for doing so be kept secret from the other. "Seven Decades of the Union," by
Henry A. Wise, p. 219.
ï~~326 THE SUPREME COURT OF THE UNITED STATES.
taught in the college. But only that no ecclesiastic of any
sect shall hold or exercise any station or duty in the college.
Suppose, instead of this, he had said that no person but a
layman shall be an instructor or officer or visitor in the college, what legal objection could have been made to such a restriction? And yet the actual prohibition is in effect the
same in substance. But it is asked: why are ecclesiastics
excluded, if it is not because they are the stated and appropriate preachers of Christianity? The answer may be given
in the very words of the testator. 'In making this restriction,' says he, 'I do not mean to cast any reflection upon any
sect or person whatsoever. But as there is such a multitude
of sects and such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans, who are to derive advantage from this bequest, free from the excitement
which clashing doctrines and sectarian controversy are so apt
to produce.'... Looking to the objection, therefore, in a
mere juridical view, which is the only one in which we are at
liberty to consider it, we are satisfied that there is nothing in
the devise establishing the college, or in the regulations and
restrictions contained therein, which are inconsistent with the
Christian religion, or are opposed to any known policy of the
State of Pennsylvania."
The Myra Clark Gaines case, which came frequently before the Court, and with varying chances of success until it
ripened into a victory for the claimant, attracted an extraordinary degree of public interest, not only on account of the
large amount of property involved, but because of the romantic
nature of the history upon which it turned. The character of the case can be best summarized in the words of Mr.
Justice Grier, when dissenting from the opinion of the majority
of the Court, both as to the law and the facts: "I do not
ï~~NO STA TE CAN TAX THE MAILS.
827
think it necessary to vindicate my opinion by again presenting to the public view a history of the scandalous gossip
which has been buried under the dust of half a century and
which a proper feeling of delicacy should have permitted to
remain so. I therefore dismiss the case as I hope for the last
time, with the single remark that if it be the law of Louisiana that a will can be established by the dim recollections,
imaginations or inventions of anile gossips after forty-five
years to disturb the titles and possessions of bona fide purchasers without notice of an apparently indefeasible legal title,
haud equidemn invideo, miror magis." 1
Two cases occur in counterpart:-in one it was held
that a person in custody under a writ issued from a United
States Court could not be legally discharged from imprisonment by a State officer acting under a State insolvent law;
in the other it was held that no United States Court or
judge could issue a habeas corpus to bring up a prisoner who
is in the custody of a State Court for any other purpose
than to be held as a witness.'
In the case of Neil Moore & Co. v. The State of Ohio,3
the controversy arose out of the cession of that part of the
Cumberland Road lying within the limits of Ohio and the
State legislature accepting the same, and the Court, adhering
to views already expressed in the case of Searight v. Stokes,'
held that tolls charged upon passengers traveling in mail
coaches, but not charged against passengers traveling in other
coaches were against the contract and void, and that while
1 Gaines and wife v. Chew, 2 Howard, 619 (1844). Patterson v. Gaines, 6 Howard,
550 (1848). Gaines v. Relf et al., 12 Howard, 473 (1851). Gaines v. Hennen, 24
Howard, 553 (186o).
2 Duncan v. Darst et al., i Howard, 301ox (1843); Ex barte Dorr, 3 Howard, 1o4
(1845).
3 3 Howard, 720 (1845)
4 3 Howard, 151 (I 845)"
ï~~828 THE SUPREME COURT OF THE UNITED STATES.
the frequency of the departure of coaches carrying the mails
was not an abuse of the privilege of the United States, yet
an unnecessary division of the mail matter among a number
of coaches was. The principle involved in both cases was
that a State could not impose a toll on carriages employed
in transporting the mail, because such a carriage must be
held to be laden with the property of the United States, and
a State could not tax a national agency. The exemption was
not pushed, however, so as to include other property in the
same vehicle, or persons traveling in it, except where they
were discriminated against.
In the important case of The State of Maryland v. The
Baltimore & Ohio Railroad Co.,' the State of Maryland had
passed an act directing a large money subscription to the
capital stock of the railroad company, provided "that if the
Company shall not locate its road in the manner provided
in the Act it should forfeit one million dollars to the use of
Washington County." By a subsequent act, so much of the
first act as made it the duty of the Company to construct
the road upon the route prescribed, was repealed and the
penalty was remitted and released. Suit was brought for the
penalty, and the Supreme Court held, through the Chief Justice, that the second act of assembly did not impair the obligation of a contract, inasmuch as the effect of the first act
was the imposition of a penalty by the State, which it had
the right to remit, even after suit had been brought for its
recovery. The scope of the law showed that it was legislation for State purposes, and a measure of State policy, which
the State had a right to change at its pleasure; and neither
the county nor any of its citizens had acquired private in
3 Howard, 534 (1845).
ï~~THE LICENSE CASES.
329
terests which could be defended and maintained in a court of
justice.
In the January Term of 1847, several celebrated cases came
before the Court known as the License cases,x all of which
arose under the much discussed clause of the Constitution
vesting power in Congress to regulate commerce. The precise point involved in the first two cases was, whether a
State might assume to regulate or prohibit the retail of
wines and spirits, the importation of which from foreign
countries had been authorized by an Act of Congress, and in
the last case, whether a State might prohibit by law the sale
of liquor imported from another State, there being no Act of
Congress to regulate such importation. In the decision of all
these cases it was unanimously determined that the laws
under review were valid and Constitutional. There was much
diversity of opinion, however, as to the principles upon which
the cases should be decided, six judges writing nine opinions.
It was fully admitted by all that if the State laws were in collision with an Act of Congress they would be unconstitutional
and void. If in the Massachusetts and Rhode Island cases
the law had obstructed the importation or prohibited the sale
of the articles in the original cask or vessel, in the hands of
the importer, it would have been void; because the importation was permitted by Congress in the exercise of its Constitional power to regulate foreign commerce; but the State
laws, so the Chief Justice contended, were framed to act upon
the article after it had passed the line of foreign commerce
into the hands of the dealer, and had thus become a part of
the general mass of the property of the State. This, he insisted, was directly within the principle as well as the lan'Thurlow v. Massachusetts, Fletcher v. Rhode Island, Peirce el al. v. New
Hampshire, 5 Howard, 504 (1847).
ï~~330 THE SUPREME COURT OF THE UNITED S TATES.
guage of the opinion of Chief Justice Marshall in the case of
Brown v. Maryland.'
The New Hampshire case differed from the two former in
several important particulars. The law prohibited the sale, in
any quantity, without license, and the sale had been made
by the importer, in the original package in which the liquor
had been imported from Massachusetts into New Hampshire.
The case, therefore, turned, in the judgment of the Chief
Justice, upon the question whether, in the absence of an Act
of Congress regulating commerce between the States, all State
laws on the subject were null and void. In other words,
whether the mere grant of power to the General Government
could be construed as an absolute prohibition to the exercise
of any power over the same subject by the States. It was
upon this question that a diversity of sentiment existed
among the members of the Court, just as it had arisen in
the case of Prigg v. Commonwealth of Pennsylvania. The
view of the Chief Justice was expressed in the following language; "The controlling and supreme power over commerce
with foreign nations and the several States is undoubtedly
conferred upon Congress, yet, in my judgment, the State
may, nevertheless, for the safety or convenience of trade, or
for the protection of the health of its citizens, make regulations of commerce for its own ports and harbors, and for
its own territory; and such regulations are valid, unless they
come in conflict with the law of Congress."
Mr. Justice McLean contended that the State laws did
not prohibit the sale of foreign spirits, but simply required a
license to sell. A license to sell an article, foreign or domestic, as a merchant, or inn-keeper, or victualler, is a matter of
1 12 Wheaton, 419 (1827).
ï~~ORIGINAL PA CKA GE CASE.
331
police and revenue, within the power of a State. It is strictly
an internal regulation, and cannot come in conflict, saving
the rights of the importer to sell, with any power possessed
by Congress. To reject this view would make the excess of
the drunkard a constitutional duty to encourage the importation of ardent spirits. In the New Hampshire case he held
that the word "import," in a commercial sense, meant goods
brought from abroad, and did not apply to the transportation
of an article from one State to another. Justices Catron,
Daniel, Woodbury and Grier had each his own mode of
stating his reasons, though all arrived at the same result.
The interest of these cases is enhanced by the later case
of Cooley v. Board of Port Wardens' and the recent decision
of Leisy v. Hardin," known as the "Original Package Case,"
in which the decision in Peirce v. New Hampshire was distinctly overruled, Chief Justice Fuller there holding: "The
conclusion follows that, as the grant of power to regulate
commerce among the States, so far as one system is required,
is exclusive, the States cannot exercise that power without
the assent of Congress, and, in the absence of legislation, it
is left for the Courts to determine when State action does or
does not amount to such exercise, or, in other words, what is
or is not a regulation of such commerce."
In the case of Cook v. Moffat, the question of the effect
of a debtor's discharge under the insolvent laws of one State
on a contract made in another State was again discussed, and
decided in conformity with the decisions in Ogden v. Saunders
and Boyle v. Zacharie, and it was held that the State Courts
were bound to conform to the decisions of the Supreme Court
of the United States declaring State laws unconstitutional.
1 12 Howard, 299 (1851). 2 135 U. S. Rep. xoo (I889).
s5 Howard, 295 (1847).
ï~~332 THE SUPREME COURT OF THE UNITED STATES..
At this term the important admiralty case of Waring v.
Clarke' was decided, in which the attention of the Court was
called to the question for the first time whether the admiralty
jurisdiction conferred by the Constitution was to be limited
to what were well-recognized cases of admiralty jurisdiction
in England at the time of the adoption of the Constitution,
or whether that jurisdiction in a public navigable river extended beyond the ebb and flow of the tide. The collision
complained of had taken place on the Mississippi River at a
point where there was much doubt whether the tide ebbed
and flowed. The majority of the Court, however, thought
that there was sufficient proof of a tidal flow, and consequently it was not necessary to consider whether the admiralty jurisdiction extended higher. But the case is remarkable for the powerful dissenting opinions of Woodbury and
Daniel, in which they pleaded for the restriction of the admiralty jurisdiction in opposition to the principles so ably contended for by Mr. Justice Wayne, and subsequently sustained
by Chief Justice Taney in the case of the Genesee Chief, in
which he asserted the bold and comprehensive doctrine that
the admiralty power of the Court extended beyond the flow
of the tide in all public navigable waters, and even over the
great fresh water lakes.2
The class of cases known as the Passenger Cases3 arose
under the same Constitutional provision which had been involved in the discussion of the License Cases. The question
was presented whether a law of the State of New York imposing a tax upon the masters of vessels arriving from a
15 Howard, 441 (1847).
' See, as to the admiralty jurisdiction on Long Island Sound, The New Jersey
Steam Nay. Co. v. The Merchants' Bank, 6 Howard, 344 (1848).
SSmith v. Turner, Norris v. City of Boston, 7 Howard, 283 (1849).
ï~~THE CO UR T STAMMERS.
883
foreign port, upon each steerage passenger and each cabin
passenger, and upon the masters of coasting vessels for each
passenger, was repugnant to the Constitution of the United
States. Two points were distinctly presented: Is the power
to regulate commerce exclusively vested in Congress? Is a
tax upon persons a regulation of commerce? Upon both
these points it was claimed upon the argument that they
had been repeatedly settled by solemn judgments, notably in
Gibbons v. Ogden and Brown v. Maryland. Against these, the
principle of New York v. Miln was cited. The result of the
deliberations of the consultation room and the judgment of
the Court left both questions in an uncertainty still more
perplexing than when the discussion began. Five Judges,
McLean, Wayne, Catron, McKinley and Grier, declared the
laws null and void, and four judges, Taney, Daniel, Nelson
and Woodbury were for sustaining them; but such was the
diversity and conflict of views, even among the Judges concurring in the prevailing opinion, that the reporter frankly
declares that "there was no opinion of the Court as a
Court." x
Not the least interesting feature of these cases, is the
extraordinary difference in recollection between Wayne and
Taney as to what had passed in the consultation-room when
New York v. Miln was decided, ten years before. Each, with
the most perfect sincerity and fullness of detail, states what
he recalls of the discussion and of the points determined; and
each, with perfect courtesy, but with characteristic firmness,
1 The discussion has been settled finally by the recent decisions of the Supreme
Court, which have substantially sustained the doctrine that the regulation of foreign
commerce is exclusively within the control of Congress, and that no State can attempt a regulation of commerce, even though there be no Act of Congress in existence with which such a regulation could conflict. Wabash, St. Louis and Pacific
R. R. Co. v. Illinois, 118 U. S., 557 (1886); Fargo v. Michigan, 121 U. S., 230 (i886).
ï~~334 THE SUPREME COURT OF THE UNITED STATES.
contradicts the other and labels the statement of his opponent
as a dangerous error.
The relation of the States to the Union is still further exhibited in the following cases:
The protection of citizens in the enjoyment of religious
liberty was held to be entirely a matter of State concern, as
the Constitution of the United States had made no provision
upon the subject.' The Court, therefore, had no jurisdiction.
Nor had it jurisdiction over a question arising out of an alleged invalidity of a statute passed by the Territory of Michigan before she became fully organized as a State.2 Nor is a
State law providing punishment for the offense of circulating
counterfeit coin of the United States unconstitutional or beyond
the powers of a State, even though Congress may have provided a similar punishment. The prohibitions contained in
the Amendments to the Constitution were intended to be restrictions upon the Federal Government and not upon the
authority of the States.3
In several most interesting cases it was held as to the
power of eminent domain that a bridge held by an incorporated
company under a charter from a State might be condemned
and taken as part of a public road under the laws of that
State. Although the charter was a contract, yet like all private rights, it was subject to the power of eminent domain of
the State, and the Constitution of the United States could not
be so construed, as to deprive the State of such a power.'
In Nesmith et al. v. Sheldon et al.,5 the Court swung
' Permoli v. Municipality No. I of the City of New Orleans, 3 Howard, 589 (1845).
SScott et al. v. Jones, 5 Howard, 343 (1847).
3 Fox v. State of Ohio, 5 Howard, 411 (1847).
4 West River Bridge Co. v. Dix et al. Id. v. Town of Brattleboro' et al., 6
Howard, 507 (1848). 57 Howard, 812 (1849).
ï~~DORR'S REBELLION.
835
back to the line from which it had departed in Rowan v.
Runnels,' and declared that it was the established doctrine
that the Supreme Court of the United States will adopt and
follow the decisions of the State Courts in the construction of
their own statutes where that construction has been settled by
the decisions of their highest tribunal. And in Nathan v. The
State of Louisiana,2 they sustained the right of a State to tax
its own citizens for the prosecution of any particular business
or profession within the State; hence a tax imposed upon all
money or exchange brokers was not void for repugnance to
the Constitutional power of Congress to regulate commerce,
even though foreign bills of exchange are instruments of
commerce.
In Luther v. Borden,3 a case arising out of the internal
troubles and violence in the State of Rhode Island over the
adoption of a Constitution in place of the Charter of Charles
II -a period known in the annals of the State as "Dorr's
Rebellion,"-the Court, Mr. Justice Woodbury alone dissenting, declined to take jurisdiction of what was purely a political
question lying beyond the reach of judicial authority. "How
can this Court," asked Webster, in argument, "invite the
present Governor and the rebel to exchange places?"
"Much of the argument," said the Chief Justice, "on the part of
the plaintiff turned upon political rights and political questions, upon
which the Court has been urged to express an opinion. We decline
doing so. The high power has been conferred upon this Court of passing judgments upon the acts of the State sovereignties and of the
legislative and executive branches of the Federal Government, and of
determining whether they are beyond the limits of power marked out
for them respectively by the Constitution of the United States. This
tribunal, therefore, should be the last to overstep the boundaries which
15 Howard, 134 (1847).
' 8 Howard, 73 (185o).
3 7 Howard, 1 (1849).
ï~~336 THE SUPREME COURT OF THE UNITED STATES.
limit its own jurisdiction; and while it should always be ready to meet
any question confided to it by the Constitution, it is equally its duty not
to pass beyond its appropriate sphere of action, and to take care not to
involve itself in discussions which properly belong to other forums."
At this point we close our view of the first half of Taney's
judicial career. It is a convenient stopping-place. It enables
us to cast a glance backward and mark the general results
accomplished by the untiring labors of the Court. No single
decision strikes the eye equal in towering majesty to those of
the days of Marshall. These still remained the unapproachable bulwarks of the nation's strength; but around and about
them appeared many subsidiary works, built under the direction of keen and critical intelligence, extending, supporting
and maintaining their effectiveness, while at times improving
their construction by reducing undue prominences or unseemly
projections. Within these, without crowding the former too
closely, and without too many or too serious breaches for the
purpose of room, line after line of ramparts had been thrown
up around the rights of the States, within which they developed their mighty energies, nursed their resources and rounded
out the full and harmonious figure of our dual system of
government.
On the whole the work accomplished by Taney and his
associates during the first fourteen years of his term, was quite
as essential to the full realization of our welfare as a nation,
and an accurate appreciation of the true character of our government as any preceding epoch in the history of the Court.
It served to check excesses, to limit extravagances of doctrine,
to awaken and develop new powers, to moderate tendencies, to
introduce contrasts and elements which in future years could
be mingled and used for the preservation of the whole, as well
as for the protection of each part. The work of this period
ï~~THE BAR IN TANE Y'S TIME.
837
was not compactly built, however, nor uniform in design.
The mind of Taney never exercised the great or predominating influence over his associates which had been characteristic
of Marshall. The practice of making the Chief Justice the
organ of the Court in delivering opinions was abandoned,
partly, as his associates have told us, because free from vanity
himself, Taney was earnestly desirous of giving them all an
opportunity of expressing their views, but chiefly, as any close
student of the decisions cannot fail to perceive, because upon
Constitutional questions the Court lacked cohesion. McLean
and Wayne were the "high-toned Federalists" of the bench,
as Mr. Justice Curtis called them when first taking his place
as their associate. Catron, Grier and McKinley had similar
tendencies, but far less pronounced, while Woodbury and
Daniel, the former a man of original and striking powers of
mind, though in the main in accord with the Chief Justice,
broke from him upon the development of the admiralty jurisdiction. It was with Nelson that the Chief Justice most frequently concurred, and during the latter part of his career,
the triumvirate which corresponded with that of Marshall,
Washington and Story, was composed of Taney, Nelson and
Campbell.
The Bar, during the period of which we have written,
was marked by the presence of men of great professional
strength. It is true that no single man exercised the potent
sway over the Court or its decisions of which Pinkney or
Webster could boast in the time of Marshall, but there was
no departure from the general high standard of those days
for learning, acuteness, thoroughness and precision, in the
arguments of such exact and accomplished lawyers as Butler
and Ogden, of New York, George Wood, of New Jersey, Berrien, of Georgia, and Binney and Sergeant, of Pennsylvania.
on2G
ï~~338 THE SUPREME COURT OF THE UNITED STATES.
Pinkney's dazzling rhetoric was not much more highly colored
than the burning eloquence of Choate; nor was the polished
style of Wirt superior to the charm of the classic scholarship of Legare, or the stately dignity of Seward. In the
power to deal heavy blows Crittenden and Bibb, of Kentucky, might fairly vie with Chase and Stanton, of Ohio,
while in the shining ranks of advocates whose union of legal
learning, professional skill, logic and eloquence made them
the most remarkable of all the men who appeared at that
great Bar stood Reverdy Johnson, of Maryland, William M.
Meredith and Jeremiah S. Black, of Pennsylvania, Caleb Cushing, of Massachusetts, and Charles O'Conor, of New York,
who pressed forward to fill the gaps occasioned by the deaths
of Clay, Webster and White.
ï~~SAMUEL NELSON.
839
CHAPTER XVI.
FIFTH EPOCH: 1850-1861: THE LATTER HALF OF TANEY'S JUDICIAL CAREER:
SKETCHES OF JUSTICES NELSON, WOODBURY, GRIER, CURTIS AND CAMPBELL:
MISCELLANEOUS CASES: PATENTS: COPYRIGHTS: LAND GRANTS: CONTROVERSIES BETWEEN STATES AS TO BOUNDARIES: THE POWERS OF THE STATES:
TAXING POWER: To PASS RETROSPECTIVE LAWS: TO REVOKE FERRY GRANTS:
To PUNISH OFFENCES PUNISHABLE BY CONGRESS: TO PROTECT FISHERY RIGHTS:
EXCEPTION TO POWER TO TAX: TO COLLECT TOLLS: LIABILITY OF CORPORATIONS TO TAXATION: JURISDICTION OF SUPREME COURT: COMMERCIAL LAW:
CONTRACTS BY MAIL: MISCELLANEOUS CASES: EXTRADITION: THE WHEELING
BRIDGE CASE: COOLEY v. BOARD OF WARDENS OF THE PORT OF PHILADELPHIA: GREAT EXTENSION OF THE ADMIRALTY JURISDICTION: THE GENESEE
CHIEF: RISE OF THE SLAVE POWER: THE DRED SCOTT CASE: ABLEMAN V.
BOOTH: TAYLOR V. CARRYL: SUITS AGAINST A STATE: HABEAS CORPUS CASES:
GENERAL REVIEW OF WORK ACCOMPLISHED BY THE COURT PRIOR TO THE OUTBREAK OF THE CIVIL WAR.
E now approach the most memorable part of the
career of Chief Justice Taney, marked by the
decision in Dred Scott v. Sandford, Ableman v.
Booth and others which immediately preceded the outbreak of
the Civil War. But before considering these cases, and others
which led to them, it is proper to notice several changes
which had taken place in the composition of the Bench.
Mr. Justice Thompson had died upon the 18th of December, 1843, and his place was filled by the appointment of Samuel Nelson, of New York, who was commissioned upon the
13th of February, 1845, and who remained in judicial harness until the latter part of 1872, when he retired under the
provisions of the Act of April io, 1869.
Samuel Nelson was born at Hebron, Washington County,
New York, on the loth of November, 1792, of Scotch-Irish
ï~~840 THE SUPREME COURT OF THE UNITED STATES.
lineage, his ancestors having immigrated to this country in
1760. He was a graduate of Middlebury College, Vermont,
in 1813, subsequently studied law under Chief Justice Savage,
and, in 1817, was admitted to the Bar of Madison County,
New York. In trying his first suit his discernment detected
an error in practice on the part of an experienced opponent,
and it was not long before he attracted attention by his skill
in the trial of cases which won for him both reputation and
clients. In 1820 he entered politics as a Presidential Elector,
served as village postmaster, and two years afterwards was a
delegate to the State Constitutional Convention, where he
advocated the excision of a clause prescribing the property
qualifications of voters. In 1823, at the age of thirty, he
became one of the Judges in the Circuit Courts organized
under the provisions of the Constitution which he had assisted in framing, William A. Duer and Reuben Walworth
being among his Associates. After eight years' service upon
this bench he became one of the Associate Justices of the
Supreme Court of the State, in place of William L. Marcy,
and, six years later, its Chief Justice, presiding in this capacity for eight years. In 1844, he was a member of a
second State Constitutional Convention, and advocated changes
in judicial tenure, warmly contending for the election of the
judges by the people. In the following year he was appointed by President Tyler to succeed Mr. Justice Thompson
upon the Supreme Bench of the United States, and held his
place until his resignation, in December, 1872, at the age of
eighty, his judicial career having covered nearly half a century-a service without a parallel in the history of jurisprudence. In 1871, he was appointed by President Grant a
member of the Joint High Commission to arbitrate the Alabama Claims on the part of the United States, on account of
ï~~/i.Gas
A. 6--.Aoo -
ï~~i.
ï~~r
ï~~.,. 9 -
ï~~LE VI WO ODB UR Y.
341
his proficiency in international law. A man of learning,
sagacity, impartiality and integrity, acute, earnest and erudite,
of kindly deportment towards the members of the Bar, of
elevated conceptions of justice and right, and of particular
knowledge and skill in the application of the law relating to
patents, his judicial opinions constitute an impressive monument to his name.
Levi Woodbury, of New Hampshire, had the distinguished
honor of succeeding to the place vacated by the death of Mr.
Justice Story. He was commissioned in the recess, September 20, 1845, and re-commissioned, on confirmation, January 3,
1846. His term of judicial service was short, as he died in
September, 1851. He is best known to the country for his
services as a Senator of the United States, but his dissenting
opinion in Waring v. Clarke is marked by such extraordinary
and powerful reasoning, in which he denies that the admiralty jurisdiction extends within the body of a county even
upon tide waters, that it is a matter of doubt whether his
capacity as a jurist was not greater than a long life of public
service had proved it to be as a statesman.
He was born in Francestown, New Hampshire, on the
22d of December, 1789, and claimed descent from English
ancestors who had settled at Cape Ann four years after the
Landing of the Pilgrims. He graduated with the highest
honors of his class from Dartmouth College in 1809, and
thereupon entered the Law School at Litchfield, Conn. He
continued his legal studies in Boston, Exeter and Francestown, and was admitted to the bar in 1812, meeting with
great success. Chosen in i816 to be Clerk of the State
Senate, in the following year he was appointed Judge of the
Supreme Court of the State. Two years later he removed
to Portsmouth, where he continued to reside, and was elected
ï~~842 THE SUPREME COURT OF THE UNITED STATES.
Governor in 1823, Speaker of the State House of Representatives in 1825, and was sent to Congress as a Senator of the
United States, serving from 1825 to 1831. In politics he was
an ardent Democrat, and at the end of his Senatorial term
was appointed by President Jackson Secretary of the Navy,
the duties of which office he discharged for three years, when
he was transferred to the Treasury Department by President
Van Buren, remaining in the Cabinet until the close of 1841.
He was then again chosen a Senator of the United States, and
served until 1845, when he was appointed by President Polk to
be an Associate Justice of the Supreme Court of the United
States, his nomination being confirmed without opposition. A
short time previous to this appointment he had declined the
position of Minister to England. His Alma Mater conferred
upon him the degree of LL.D. in 1823, and he was a noted
member of various literary societies. After his death a volume
of his political, judicial, and literary writings was published in
Boston which attests his attainments as a scholar. He was
also known as the editor of a volume of law reports in connection with Judge Richardson, of New Hampshire. Thomas
H. Benton termed him the " Rock of New England Democracy" for the part he took in the celebrated Senatorial debate
relating to public lands. He also made himself conspicuous
in the session of 1841 in defending the independent treasury
system which was first established under his administration of
that department, and in defeating the bank system of Henry
Clay. He voted against the increase of the Navy, and in 1844
against the annexation of Texas. He enjoyed a succession
of exalted public honors, but he thought much less of them
than of the duties they entailed. Chief Justice Taney said of
him: "He had been a member of the Court but a few years;
yet he was long enough on the bench to leave behind him, in
ï~~i
ï~~ti
ï~~ROBERT C. GRIER.
343
the reports of the decisions of the Court, the proofs of his
great learning and industry, and of his eminent qualifications
for the high office he filled."
Robert C. Grier, of Pennsylvania, was commissioned on
the 4th of August, 1844, as an Associate Justice in the place
of Henry Baldwin, deceased. He was not the original choice
of President Tyler. The place was first offered to the celebrated John Sergeant, who declined it on the ground that
being more than sixty years of age he had resolved to accept
no public position, but with the suggestion that it be offered
to Horace Binney, without informing him of his own declinature or his reason. Mr. Binney declined it for the same
reason, and suggested that the place be offered to Mr. Sergeant, with a similar injunction of secrecy as to his action.
Mr. Grier was born on the 5th of March, 1794, on a farm in
Cumberland County. His father was a clergyman, who gave
him personal instruction until he was prepared to enter Dickinson College. For one year after graduation he taught in a
grammar school attached to the College, but after that time
went to Northumberland County to assist his father, who was
a superior Greek and Latin scholar, whom he succeeded as
principal of an academy in 1815, lecturing upon astronomy
and chemistry, serving as professor of the classics and mathematics, and securing for his institution the library and philosophical apparatus of the celebrated Joseph Priestley. He then
turned his attention to the law, under the direction of Charles
Hall, an eminent practitioner of Sunbury; was admitted to the
bar in 1817, and for nineteen years was engaged in active practice in Bloomsburg and Danville. Attaining professional distinction at an early age he was enabled to support his mother
and educate ten brothers and sisters. At the age of forty-six
years his reputation was so well established that he was made
ï~~844 THE SUPREME COURT OF THE UNITED STATES.
President Judge of the District Court of Allegheny County,
which caused his removal to Allegheny City. There he resided
until 1848, after which time he made his home in Philadelphia during the rest of his life. Originally a Federalist, he
acted with the Democratic Party until the outbreak of the
civil war, when he attached himself ardently to the cause of
the Union. He delivered the opinion of the Court in the
Prize Cases, involving principles which were vital to the successful conduct of the war and the preservation of the integrity of the Union. Upon his resignation from the Supreme
Court, in 1870, President Grant addressed to him a letter of
regret, in which he expressed his appreciation of the great
service which he was able to render to his country in the
darkest hour of her history, by the vigor and patriotic firmness with which he "upheld the just powers of the government, and vindicated the right of the nation to maintain its
own existence."
Possessed of sound judgment and great legal knowledge,
he earned the good will and admiration of the entire profession. His learning was rich and varied, his comprehension
of legal principles was clear, his power of close reasoning and
forcible expression was striking, his character was marked by
uprightness, simplicity and independence. He discharged his
judicial duties with zeal and fidelity. His opinions contain
no dicta, and form no essays; with very little quotation, they
show, not the less, extensive learning and research. His
'spare references to authority were " the result of selection and
not of penury." His personal life was pure and blameless,
graced by modesty and refinement. As a lawyer, tested by
professional standards, he occupies a front rank among the
jurists of America. He had the singular experience of "attending," as Mr. Evarts said, "the funeral of his successor."
ï~~
ï~~Ka
n.
Mt.9,.
h3
ï~~BENJAMIN R. CUR TIS.
345
He had resigned his place under the provisions of the Act of
April loth, 1869; his retirement to take effect on the Ist of
February, 1870. The Hon. Edwin M. Stanton was appointed
and duly commissioned upon the 2oth of December, 1869, the
commission to take effect the following February, but Mr.
Stanton died four days afterwards, on the 24th of December, 1869.
Mr. Justice Woodbury died on the 4th of September,
1851, and Benjamin R. Curtis, of Massachusetts, was commissioned as his successor, during the recess, upon the 22d
of September, 1851, and recommissioned, on confirmation, upon
the 2oth of December, of the same year. The appointment
was made by President Fillmore at the earnest solicitation of
Mr. Webster, then Secretary of State. Although holding his
place for the brief period of six years, he established a judicial reputation second to none of his associates, and in conjunction with Mr. Justice Campbell, appointed a year later,
brought to the bench an accession of judicial strength which
rendered its opinions upon purely legal questions of the utmost value to the profession. Curtis was as deeply learned
in the Common law and the principles of Chancery, as Campbell was in those of the Civil law and the Code of Louisiana. Born in widely sundered States, these men represented
the opposite extremes of legal doctrine and professional training, and presented in contrast the most remarkable judicial
qualities developed under diverse systems of education. Curtis was deeply imbued with the spirit of those sturdy statutes
of Anglo-Saxon times which found their highest expression in
Magna Charta and the Bill of Rights, and was in thorough
sympathy with the doctrine of Lord Mansfield, announced in
the case of the negro Somerset, that the soil of England was
too free to be polluted by the footsteps of a slave. Campbell
ï~~346 THE SUPREME COURT OF THE UNITED STA TES.
was thoroughly inoculated with the principles of the great
system of Roman law, which, however great its merits, was
poisoned by the maxim that the will of the prince was the
law of the subject. Both, in later life, after their resignation
from the bench, attained to the most illustrious station as
advocates at the bar.
Benjamin Robbins Curtis was born at Watertown, Massachusetts, on the 4th of November, 1809. He was of English descent, and his ancestors had emigrated in the ship
"Lyon," and landed at Boston on the 16th of September,
1632. Upon his mother's side he was descended from Sarah
Eliot, a sister of John Eliot, the "Apostle to the Indians."
His grandfather was a physician, and his father a merchant
who had made several voyages as supercargo, and afterwards
as Master. His mother was Lois Robbins, of Watertown, a
daughter of James Robbins, a prominent and respected citizen, who had carried on various branches of manufacturing,
and had been interested in a country store. The future Associate Justice was their elder son, the younger being George
Ticknor Curtis, the accomplished historian of the Constitution, the author of the Lives of Webster and of James Buchanan, and one of the counsel who argued the Dred Scott case
in behalf of the slave. Benjamin was educated at Harvard
College, having enjoyed early opportunities for reading under
the direction of his mother. He won prizes, and took high
rank as a scholar, displaying evident capacity for the legal
profession. He entered the Law School at Cambridge, where
he enjoyed the lectures of Mr. Justice Story, and finished his
studies at Northfield under the direction of John Nevers, an
old-fashioned lawyer, but not a man of distinction or remarkable ability.
His youth was passed in close and intimate friendship
ï~~BENJAMIN R. CUR TIS.
847
with his uncle, George Ticknor, a celebrated man of letters.
In 1832 he was admitted to the bar, and very early in the
course of his professional career gave evidence of forensic
powers of the highest order. His familiarity with the Common
law, which he explored in the pages of Coke, the Year Books
and the Law Reports, as well as the law relating to contracts
and pleading, enabled him to win success. His acquaintance
with equity practice did not begin until a later period, as the
equity jurisdiction of the Courts of Massachusetts was at that
time somewhat narrow and fragmentary. His studies in Constitutional law were profound. In a short time he removed
from Northfield to Boston, as a more congenial field for the
display of his talents. The extent and readiness of his attainments, his accuracy and logical methods soon made him
prominent, and he greatly distinguished himself in the case
of the slave child Med. It is somewhat singular that as
counsel he contended in this case for exactly the opposite
principle sustained by him so powerfully in his dissenting
opinion in the Dred Scott case, maintaining that a citizen of
a slave-holding State who comes to Massachusetts for the
temporary purpose of business or pleasure and brings his slave
as a personal attendant on his journey, may retain the slave
for the purpose of carrying him out of Massachusetts and
returning him to the domicile of the owner. At this time,
however, the excitement upon the subject of slavery had not
reached fever heat and the question could be discussed calmly
without arousing an offended sense of morality by which
slavery was to be regarded either as wicked in a court of law,
or prohibited by the law of nations, or contrary to natural
right. The decision, however, pronounced by Chief Justice
Shaw, and concurred in by all the Judges, negatived the
proposition maintained by Curtis, and held that the maxim
ï~~848 THE SUPREME COURT OF THE UNITED STATES.
-the right of personal property follows the person of the
owner-was to be limited strictly to those commodities that
were everywhere and by all nations treated and deemed subjects of property; that the local laws which recognized property
in slaves, while they might operate within their own jurisdiction so as to impart the incidents of property, could not operate proprio vig-ore outside of that jurisdiction; and that no
rule of comity required a State to give to the laws of another
State an operation within its territory which was inconsistent
with its own public policy and legislation. His practice soon
became extensive, both in the State and Federal courts, and
he took some part, though not an active one, in public affairs,
writing an article upon the " Repudiation of State Debts,"
which was published in the North American Review. Upon
the death of Judge Story Mr. Curtis was appointed to succeed
him in the Corporation of Harvard College. Shortly after this
the fugitive slave excitement broke out in Boston, and Mr.
Curtis, although not a partisan, yet generally voting with
the Whig Party, accepted the invitation to make an address
of welcome to Mr. Webster, who had recently avowed his
support and approval of a proposed Act of Congress,-one of
the Compromise measures of 1850,-designed for the more
effectual execution of the provision of the Constitution relating to the extradition of fugitive slaves.
The professional leadership of Mr. Curtis was so well
established, that although the names of Judge Pitman, of the
District Court of Rhode Island, and Judge Sprague of the District Court of Massachusetts, had been suggested to the President as suitable appointees, yet the appointment of Mr. Curtis
gave universal satisfaction both to the Bar and the public. After
ascending the bench, his first judicial utterance of importance
was in Cooley v. The Board of Port Wardens of the City of
ï~~CURTIS AND CAMPBELL.
849
Philadelphia, in which he stated in new terms the doctrines
of Constitutional law relating to the power of Congress to
control foreign commerce and carried them to a greater height
than had before been attained. The period of his judicial
service was brief, and in popular recollection he will be chiefly
remembered as the Judge who with Mr. Justice McLean most
strongly dissented from the opinion of the majority of the
Court in the Dred Scott case. His resignation from the Bench
soon followed, taking place in 1857. The reasons which led
to it were stated to be the insufficiency of his salary and
his inability to support a large family upon his income;
but the reader of the correspondence, which became somewhat embittered, between Chief Justice Taney and himself,
in relation to an important change in the language and
matter of the opinion of the Chief Justice, made after it
had been delivered but before it had been filed, by which
the Chief Justice inserted eighteen new pages in reply to
the illustrations and objections urged by Judge Curtis in
his dissenting opinion, will perceive the probable reason for
his withdrawal from the Court.' He published two volumes of
Reports of his decisions on Circuit, and a condensed edition of
the decisions of the Supreme Court of the United States from
its origin to 1854. He also delivered in 1872 to the students of
the Harvard Law School a series of Lectures, which have been
published under the title of "Jurisdiction, Practice and Peculiar
Jurisprudence of the Courts of the United States." He was "the
consummate master of forensic style among American lawyers of
recent times. His clearness of thought and precision of statement were the delight not only of Bench and Bar, but even of
' The reader can follow this correspondence in the "Life and Writings of B.
R. Curtis," edited by his son, Benjamin R. Curtis, Vol. I, pp. 212-230, and Tyler's
"Memoir of Roger B. Taney," Chap. V, p. 331 et seq.
ï~~850 THE SUPREME COURT OF THE UNITED STATES.
the educated laity who would be drawn into the court-room for
the mere pleasure of listening to him as he unfolded an argument. There the most intricate problems of law through his
treatment of them became lucid.... His rhetoric both in
form and manner was perfection of its kind, for as he stood
up and addressed the court,-clear, calm, distinct and unimpassioned,-he seemed to the listener the ideal of a forensic,
dialectical orator."1
The promotion of John Archibald Campbell to the bench
was occasioned by the death of Mr. Justice McKinley in
July, 1852. This great judge was commissioned upon the
22d of March, 1853. In less than eight years he also resigned. It will never cease to be a matter of professional
regret that two such judges as Campbell and Curtis, having
once attained such exalted stations, and having displayed
such surpassing judicial powers, should have felt themselves
called upon to retire from membership in a tribunal which
they had greatly strengthened and adorned. In fact, had
Campbell remained until the day of his death, his term of
judicial service would have exceeded that of any man, Chief
Justice or Associate, who had ever held a place upon that
bench. It takes time to create a great judicial reputation,
and the fruits of judicial wisdom ripen slowly. Had Marshall
or Taney been stricken down in the midst of their careers,
they would, as Chief Justices, be as little known to the country as Ellsworth and Chase. Or had Washington and Story
resigned in middle life, their names would be as little remembered as those of Barbour and Woodbury. All of Chief Justice
Marshall's great Constitutional judgments, save two, were
pronounced after he had been fifteen years upon the bench,
' Life of Richard Henry Dana, by Charles Francis Adams, Vol. II, p. 139.
ï~~/
P Ak
1 \ 1,.; =,.,;...,
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I
ï~~
ï~~JOHN A, CAMPBELL.
851
and the remarkable impression which Story made was after
his judicial harness had become well worn. It is a matter of
satisfaction, however, to record that the influence of Curtis
and Campbell upon the bench which they quitted was not
lost, as in after years no men appeared at the bar whose arguments made a profounder impression.
John Archibald Campbell was born in Washington,
Wilkes County, Georgia, upon the 24th of June, 1811. His
father was Duncan Greene Campbell, a descendant of emigrants from Scotland to the Colony of North Carolina. His
grandfather served in the Continental line, became a Captain,
and was attached to the personal staff of General Nathaniel
Greene. Duncan G. Campbell removed to Georgia, was admitted to the bar, and married Mary Williamson, the youngest
daughter of Lieut. Col. Williamson, of the Georgia regiment
commanded by Col. Elijah Clark, which became famous in
the annals of the war in the Southern department. The
brigade of Pickens, the regiment of Clark, with Lee's Legion
and the commands of Sumter, Shelby, Sevier and Francis
Marion have been aptly termed the Rear Guard of the Revolutionary Army. Duncan G. Campbell is described in the
"Recollections of an Old Lawyer," one of his associates, as
the leader of his party in the State, of captivating address,
courtly manners, and an orator withal. The County Campbell and town Campbellton were named after him. He was
an enlightened statesman in the State of Georgia. He died
in 1828.
His son, John A. Campbell, was educated at the University of Georgia. He entered college at the age of eleven
years, and graduated in 1826, at the age of fifteen, with the
first honors of his class. He was appointed by John C. Calhoun, then Secretary of War, as a cadet in the Military
ï~~352 THE SUPREME COURT OF THE UNITED STATES.
Academy at West Point. He was admitted to the bar in
March, 1830, at Montgomery, Alabama, having pursued his
legal studies under John Clark, one of the Governors of
Georgia, and John W. Campbell, his uncle, and during
that year married Miss Goldthwaite, from Boston. He
was successful in the profession, and in 1837 removed to
Mobile, where he resided till his appointment as Associate
Justice of the Supreme Court of the United States in March,
1853. In 1836 there were disturbances among the Indian
tribes in Alabama, and some devastations committed by them.
The blame rested, principally, upon speculators in lands and
intruders. Large bodies of troops were collected from Georgia and Alabama, and mustered into the service of the United
States, forming two Corps d'Arm6e. John A. Campbell was
appointed Adjutant General of the second army of the South,
being at the same time a member of the Legislature.
The judicial services of Mr. Justice Campbell were terminated abruptly by his resignation in 1861. He was the only
Judge swept from the bench of the Supreme Court by the tide
of secession. Before leaving the Bench he was a volunteer
agent for the Confederate Government, and engaged in futile
conferences with Secretary Seward to obtain the withdrawal of
the United States troops from Fort Sumter. After departing
from Washington he declined office under the Confederacy
until August, 1862, when he became Assistant Secretary of
War, and passed several years in this uncongenial service.
"When I saw this highly endowed and eminently disinterested and patriotic man," said Henry S. Foote, "for many
long and dreary months patiently and quietly performing the
duties of a subordinate position in the War Department, at
Richmond, under the supervision of men who, compared with
him, were mere pigmies in intellect, I could not help men
ï~~JOHN A. CAMPBELL.
853
tally recurring to the noted case of Epaminondas, in the
olden time, who was insultingly sentenced to sweep the
streets of Thebes as a meet reward for public services which
all the wealth and honors in the gift of his stupid and inappreciative countrymen would have been able but poorly and
inadequately to requite." When the financial collapse of the
Confederacy was manifest, in 1864, Campbell with others was
sent to Hampton Rhoads, where they met President Lincoln
and Secretary Seward, and conferred on the restoration of
peace, but effected no arrangement. On the capture of Richmond, in April, 1865, Campbell remained as the sole representative of the Confederacy.
When he resumed his place at the bar of the Supreme
Court of the United States, his arguments became as renowned as any ever delivered before that tribunal. In the
New Orleans Water Works case and in the suits brought
by the States of New York and New Hampshire against
the State of Louisiana, he impressed himself most profoundly on the Court, while in the Slaughter House Cases
it is said: "He seemed to have levied a contribution on the
literature and learning of the world to enable him to show
the intolerance of the Common law of monopolies, and to furnish authentic examples of the almost infinite devices by
which the strong have, in all countries and in all ages, managed to destroy or curtail the right of every individual to
exercise his faculties in any way that might seem good in
his own eyes, saving, of course, the rights of others, as a
basis for his powerful contention that while African slavery,
as it had existed in the Southern States, was the occasion
for the provision of the Constitution putting an end to slavery or involuntary servitude, the language of the Constitution had a scope far beyond the occasion that caused its use,
28
ï~~354 THE SUPREME COURT OF THE UNITED STATES.
and applied to all attempts to frustrate the Heaven-descended
right of every man to exercise his faculties in his own way."
He was a profound and philosophical jurist, who gave vigor
and breadth to his intellect by constantly resorting to the
great sources of Roman law.
With the Court thus constituted,, a vast amount of business was transacted of the most varied and interesting character. One noticeable feature is the remarkable increase in
the number of patent causes, some of them relating to inventions of world-wide celebrity: Woodworth's Planing machine,
Stimpson's Railroad invention, Goodyear's India-rubber, Elias
Howe's Sewing-machine, Tatham's method of making tubes
from lead, Burden's patent for nails and spikes, Winans' coal
cars with drop-bottoms, the McCormick Reaper, and greatest of all, Morse's Electro-magnetic Telegraph, which has done
more to bind in the bonds of Federal union the most distant
States than even steam-boats, railroads, and newspapers.
These cases gave rise to the most intricate and perplexing
problems, not only of law, but of mechanics and science.
All were dealt with by both Bench and Bar in a manner which
awakens the most enthusiastic admiration over the intellectual
vigor displayed, by which inventive genius was protected in its
just rights from mistaken claims as to priorities and from
fraudulent infringements, while the rights of assignees were
stated in terms which enforced the sacred obligations of trust.'
Closely allied with exclusive rights under patents was the
1Stimpson et al. v. Wilson, 4 Howard, 710 (1846). Wilson v. Rousseau, Ibid.,
647 (1846). Wilson v. Simpson, 9 Howard, o9 (1850o). Stimpson v. Baltimore and
Susquehanna R. R. Co., Io Howard, 329 (1850o). LeRoy et al. v. Tatham et al., 14
Howard, 156 (1852); 22 Howard, 132 (1859). Troy Iron and Nail Factory v. Corning,
14 Howard, 194 (1852). O'Reilly v. Morse, 15 Howard, 62 (1853). Opinion by Taney.
Corning v. Burden, 15 Howard, 253 (1853). Winans v. Denmead, 15 Howard, 330
(1853). Seymour v. McCormick, 16 Howard, 480 (1853); 19 Howard, 96 (1856).
ï~~THE POWERS OF S TA TES.
question of copyright, and although the Court declared that it
would be difficult to assent to the proposition that an exclusive right either by Letters Patent or Copyright granted by
the United States could be sold under the execution of a
judgment of a State Court, yet they refused to pass directly
upon the question; but they did hold that the right to print
and publish a map which had been copyrighted did not pass
to the purchaser at Sheriff's sale of the copper plate upon
which it was printed.'
Another feature is the discussion of French and Spanish
grants under the Treaty of Paris ceding the territory of Louisiana, Spanish titles under the Florida cession, and Mexican
grants in California, and kindred subjects, by which, in suits
of ejectment and actions of trespass, conflicting rights were settled in regard to the quiet and peaceable possession of territories as immense as the imperial domain of the Caesars, and
richer than the mines of Golconda.2
The boundaries between the States of Missouri and Iowa,
and between Florida and Georgia were established.'
In the controversy between the latter States, in a case
where a bill had been filed by the State of Florida against
the State of Georgia to establish the boundary lines, the
Attorney-General of the United States moved to intervene in
behalf of the United States. It was held that he might do so,
and adduce evidence both written and parol, examine witnesses,
1 Stevens v. Gladding, 17 Howard, 447 (1854).
2United States v. Reynes, 9 Howard, 127 (1850). LaRoche et al. v. The Lessee
of Jones et al., Ibid., 155 (1850o). United States v. Cities of Philadelphia and New
Orleans, II Howard, 61o (1850). Montault v. United States, 12 Howard, 47 (1851).
United States v. Hughes, 13 Howard, 1 (1851). United States v. Reading, 18 Howard,
I (1855).
'State of Missouri v. Iowa, and Iowa v. Missouri, 7 Howard, 660 (1849); o10
Howard, x (1850o). State of Florida v. State of Georgia, 17 Howard, 478 (1854).
ï~~856 THE SUPREME COURT OF THE UNITED STATES.
and be heard upon argument, without making the United
States a party in the technical sense of the term. His right
to do so was sustained by a majority of the Court, speaking
through the Chief Justice; but Justices Curtis, McLean, Campbell and Daniel strongly dissented. Chief Justice Taney in
the course of his opinion said:
"The case then is this: Here is a suit between two States in relation to the true position of the boundary line which divides them, but
there are twenty-nine other States, who are also interested in the adjustment of this boundary, whose interests are represented by the United
States. Justice certainly requires that they should be heard before their
rights are concluded by the judgment of the Court. For their interests
may be different from those of either of the litigating States, and it would
hardly become this tribunal, entrusted with jurisdiction where sovereignties are concerned, and with the power to prescribe its own mode of proceedings, to do injustice rather than depart from English precedents. A
suit in a Court of justice between such parties, and upon such a question, is without example in the jurisprudence of any other country."
Several important cases arose in which the powers of the
States were considered. The taxing power of the States was
upheld, the Court announcing that such a power, which was
an attribute of sovereignty, should never be presumed to be
relinquished unless the intention is declared in clear and unambiguous terms.' The right of the States to direct a re-hearing of cases decided in their own Courts was upheld. The
only limit upon their power to pass retrospective laws, said
the Court, is that which grows out of the prohibition by the
Constitution of the United States of the passage of ex post
facto laws, i.e., retrospective penal laws; but laws merely
divesting antecedent vested rights of property, where there was
no contract, are not inconsistent with the Constitution of the. Phila. and Wilmington R. R. Co. v. State of Maryland, io Howard, 376 (185o).
ï~~PO WERS OF STA TES.
357
United States.' So too, a revocation by a State legislature of
a grant of ferry rights to a town was upheld, the subject
matter of the grant, and the character of the parties to it,
both showing that such a grant was not a contract beyond
legislative interference.2 So, too, where the State of Illinois
saw fit to provide a statutory punishment for the offence of
harboring fugitive slaves, it was held that the State in the
exercise of its police powers might repel from its borders an
unacceptable population, paupers, criminals, fugitives or slaves,
and to punish those of her citizens who endeavored to thwart
this policy by assisting the fugitives, and it was no objection
to this legislation that the offender might be. liable to punishment under an act of Congress for the same offence.3 From
this judgment Mr. Justice McLean strongly dissented on the
ground that it was contrary to the nature and genius of our
government to punish an individual twice for the same offence,
and where jurisdiction had been clearly vested in the Federal
Government, and Congress had acted, no State could punish
the same act.
And in Smith v. The State of Maryland,4 it was held that
a State law forbidding the taking of oysters with a scoop was
Constitutional, and that a vessel with a license from the
United States might be forfeited under such a law, inasmuch
as the State had a right to preserve the public right of fishery. Mr. Justice Curtis, in delivering the opinion of the
Court, declared that the purpose of the law was to protect the
1 Baltimore and Susquehanna R. R. Co. v. Nesbit et al., 1o Howard, 395 (1850o).
2Town of East Hartford v. Hartford Bridge Co., io Howard, 5II (1850).
Moore v. People of the State of Illinois, 14 Howard, 13 (1852). This was in
conformity with the decision in Fox v. State of Ohio, 5 Howard, 4o10 (1847).
18 Howard, 71 (1855). This was in confirmation of Martin v. Waddell, 16
Peters, 367 (1842), and Den e.x demise Russell v. The Jersey Company, 15 Howard, 426 (1853).
ï~~858 THE SUPREME COURT OF THE UNITED STATES.
growth of oysters in the waters of the State by prohibiting
the use of particular instruments in dredging for them; that
the soil below low-water mark was the subject of exclusive
proprietary right and ownership, and belonged to the State
on whose maritime border and within whose territory it lay,
and that this soil was held by the State not only subject
to, but in some sense in trust for, the enjoyment of certain
public rights, among which was the common liberty of taking
fish, as well shell-fish as floating fish.
But when a State imposed a tax upon passengers over
the Cumberland Road, or a gross sum upon coaches carrying the United States mail, it was held to be a tax upon
the United States, and in violation of the compact between
the State and the United States.1
The extent and true meaning of grants to corporations
were solemnly adjudicated, and attempts made by them to
transcend their lawful powers were rebuked, all ambiguities
in charters being resolved in favor of the public. An effort
of a canal company, claiming under grants from three States,
to collect tolls from passengers passing through the canals,
or from vessels on account of the passengers on board, was
restricted to tolls upon commodities.2
Corporations were subjected by taxation to their just
share of the burdens of public expense.3 And an effort to
restrain one railroad company from crossing another at right
angles was frustrated, and it was held that such crossing did
not impair the obligation of the contract contained in the
charter of the objecting company.4
' Achison v. Huddleson, 12 Howard, 293 (1851).
* Perrine v. Chesapeake & Delaware Canal Co., 9 Howard, 172 (1850).
3 Philadelphia & Wilmington R. R. Co. v. State of Maryland, Jo Howard, 376
(i85o).
4 Richmond &c. Railroad Co. v. Louisa R. R. Co., 13 Howard, 71 (185).
ï~~THE APPELLATE JURISDICTION.
359
The scope and limits of Federal appellate jurisdiction
were still more definitely settled, and litigants instructed in
the oft-repeated lesson that where the decision of a State
Court was in favor of the plaintiff's right claimed under an
act of Congress, or where it was a State statute that had
been construed, no writ of error would lie.x But the jurisdiction was upheld where a State Court had decided that a title
acquired under a deed was better than one acquired under
the judgment of a United States Court.2 And although laws
passed in Texas before her admission as a State could not be
examined on a plea that they were in conflict with the Constitution of the United States, the same point being ruled in
Kennett v. Chambers,4 yet where a Territorial Court had rendered judgment, and the record was certified to the Supreme
Court of the United States after the admission of the Territory into the Union, the subject matter would and could be
reviewed in the Supreme Court of the United States.5
The principles of commercial law were examined and applied in a multitude of instances, notably in cases of insurance and of promissory notes, and it was held that where the
contract grew out of a correspondence, the deposit of a letter
in the mail accepting the terms of an offer completed the
contract.6
A number of cases of a miscellaneous character were
considered, which show the range and variety of subjects discussed. The far-famed rule in Shelly's case was considered
1 Trustees of the Bank of Cincinnati v. Baldwin, 9 Howard, 261 (1850).
2 Clements v. Berry, II Howard, 398 (1850).
a League v. De Young, II Howard, 185 (1850).
4 14 Howard, 38 (1852).
SWebster v. Reid, ii Howard, 437 (1850).
6 Tayloe v. Merchants' Insurance Co. of Baltimore, 9 Howard, 390 (1850).
ï~~860 THE SUPREME COURT OF THE UNITED STATES.
in Webster v. Cooper.' The liability of a Railroad Company
for negligence in injuring a stockholder, while riding free at
the President's invitation, was enforced.2 The City of Providence was held liable for a breach of municipal duty in not
maintaining her sidewalks safe from snow;3 while General
Kosciusko's wills were interpreted in Ennis el al. v. Smzlh.4
Duties upon imports and the proper interpretation of the Acts
of Congress relating thereto, were considered in a case which
involved the appraisement of the amount of quinine contained
in Peruvian bark.5
In discussing the question of the citizenship of corporations, in the case of Marshall v. The Baltimore d Ohio Railroad Co.,6 the Court upheld sound principles of morality by
avoiding contracts to obtain legislation through the employment of secret agents, who were to be paid if successful, on
the ground that such contracts were against public policy.
In administering the principles of general equity jurisprudence, which it was insisted must be uniform throughout
the United States, it was held that the decisions of State
courts, when not depending upon local law or usage, were not
binding upon the United States Courts.7
In re Thomas Kaine,8 an alleged fugitive from Great
Britain, a question of extradition, arising under the tenth
article of the Treaty of 1842 between the United States and
Great Britain, was considered. A warrant had been issued by
1 14 Howard, 488 (1852).
2 Philadelphia & Reading Railroad Co. v. Derby, 14 Howard, 468 (1852).
8 City of Providence v. Clapp, 17 Howard, 161 (1854).
4 14 Howard, 400 (1852).
5 Bartlett v. Kane, 16 Howard, 263 (1853). U. S. v. Sixty-seven Packages of Dry
Goods, 17 Howard, 85 (1854). U. S. v. Nine Cases of Silk Hats, Ibid., 97 (1854).
6 16 Howard, 314 (1853).
7 Neves et al. v. Scott et at., 13 Howard, 268 (1851). 8 14 'Howard, l03 (I852).
ï~~AN EXTRADITION CASE.
361
a United States Commissioner at the instance of the British
Consul for the apprehension of a person, who it was alleged
had committed an assault with attempt to murder in Ireland.
Kaine having been committed for the purpose of abiding
the order of the President of the United States, applied for
a habeas co/Pus, which was issued by the Circuit Court of
the United States, and after a hearing, the writ was dismissed,
and the 'prisoner remanded to custody. The opinion of the
Court refusing the motion for the writ was delivered by Mr.
Justice Catron, in which Justices McLean, Wayne and Grier
concurred. Justice Curtis delivered a separate opinion, which
was dissented from by the Chief Justice, and Justices Daniel
and Nelson, all of whom believed that the writ should issue
in order to bring up the prisoner with a view to his discharge, on the ground that the judiciary possessed no jurisdiction to entertain the proceedings under the treaty, without
a previous requisition made under the authority of the English Crown upon the President: and on the further ground
that the United States Commissioner was not an officer within
the terms of the Treaty upon whom the power had been conferred to hear and determine the question of criminality upon
which the surrender was made.
The greatest and most prominent of all the discussions
at this period, however, were those which turned upon the
meaning of the "Commerce Clause" in the Constitution, and
two cases arose which are among the most celebrated in the
annals of our jurisprudence: The Wheeling Bridge case and
the case of Cooley v. The Board of Wardens of the Port of
Philadelpfhia.
The former came before the Court upon several occasions,'
1 State of Pennsylvania v. The Wheeling & Belmont Bridge Co. et al., 9 Howard,
647 (1850); 13 Howard, 518 (1851); 18 Howard, 421 ki855).
ï~~862 THE SUPREME COURT OF THE UNITED STATES.
and was argued by Mr. Edwin M. Stanton, in behalf of the
State of Pennsylvania, and Mr. Reverdy Johnson, in behalf of
the Bridge Company, with a degree of ability and learning
worthy of the palmiest days of the old Bar of the Supreme
Court. In fact, the argument of Mr. Stanton touched the
profoundest depths of the question, and rose to the loftiest
heights of eloquence. It was contended that the Ohio River
was a highway of commerce leading to and from the ports of
Pennsylvania, regulated by Congress, which had been unlawfully obstructed by the bridge across the river at the city
of Wheeling, built under the authority of the State of Virginia, without a draw, to the injury of the State of Pennsylvania, and that, therefore, the bridge ought to be abated as a
nuisance by decree of the Court in the exercise of its original
jurisdiction, a State being party plaintiff. The opinion was
delivered by Mr. Justice McLean, sustaining this contention,
and putting the Bridge Company upon terms either to elevate its structure, build a draw, or to remove it entirely.
From this judgment Chief Justice Taney dissented, together
with Mr. Justice Daniel, upon the ground that it was doubtful
whether the bridge was a public nuisance, or whether the
Court had jurisdiction to decree its abatement. Before the
decree of the Court could be executed, an Act of Congress
was passed, by which the bridge constructed by the company
was declared to be a lawful structure in its then condition,
and was also declared to be a post-road for the passage of
the mail of the United States. Subsequently the main bridge
was blown down in a gale of wind, and the Company was
making preparations to rebuild it when a bill was filed, praying for an injunction. It was held that Congress, under its
power to regulate commerce, might supersede the decree of
the Supreme Court founded upon public right, and that such
ï~~THE COMMERCE CLAUSE.
863
an act was not in conflict with the Consitution. Although
Congress could not annul a judgment of the Court upon the
private rights of the parties, it could annul one founded on
the unlawful interference with the enjoyment of a public
right, that being entirely under the control of the national
legislature. The opinion of the Court upon the latter application was delivered by Mr. Justice Nelson, concurred in by
Justices Wayne, Grier and Curtis, Mr. Justice McLean dissenting. Mr. Justice Daniel, while concurring in the decision
of the Court, dissented from the reasons expressed.
In the case of Cooley v. The Board of Wardens of the
Port of Philadelphia,' a law of the State of Pennsylvania for
the regulation of pilots and pilotage was held to be Constitutional, Judge Curtis declaring that the terms of the act, which
provided that a vessel neglecting or refusing to take a pilot
shall forfeit and pay to the Master Wardens of the Pilots for
the Society for the Relief of Distressed and Decayed Pilots,
constituted an appropriate part of a general system of regulations on the subject of pilotage, and did not conflict with
the Article of the Constitution prohibiting States from imposing imposts and duties on imports, exports and tonnage, inasmuch as these subjects were distinct from fees and charges
for pilotage and from the penalties by which commercial
States enforced their pilot laws. In considering whether the
law in question was repugnant to the clause vesting in Congress the power to regulate commerce, he said:
"That the power to regulate commerce includes the regulation of
navigation we consider settled. And when we look to the nature of the
service performed by pilots, to the relations which that service and its
compensation bear to navigation between the several States, and between
the ports of the United States and foreign countries, we are brought to
1 12 Howard, 299 (1851).
ï~~864 THE SUPREME COURT OF THE UNITED STATES.
the conclusion that the regulation of the qualifications of pilots, of the
modes and times of offering and rendering their services, of the responsibilities which shall rest upon them, of the powers they shall possess,
of the compensation they may demand, and of the penalties by which
their rights and duties may be enforced, do constitute regulations of
navigation, and consequently of commerce, within the just meaning of
this clause of the Constitution.... How, then, can we say that by the
mere grant of power to regulate commerce the States are deprived of all
the power to legislate on this subject, because, from the nature of the
power, the legislation of Congress must be exclusive? This would be to
affirm that the nature of the power is, in any case, something different
from the nature of the subject to which in such case the power extends,
and that the nature of the power necessarily demands in all cases exclusive legislation by Congress, while the nature of one of the subjects of
that power not only does not require such exclusive legislation, but may
be best provided for by many different systems enacted by the States in
conformity with the circumstances of the ports within their limits....
It is the opinion of a majority of the Court that the mere grant to Congress of the power to regulate commerce did not deprive the States of
power to regulate pilots, and that although Congress has legislated on
this subject, its legislation manifests an intention, with a single exception, not to regulate this subject, but to leave its regulation to the several States."
From this reasoning Justices McLean and Wayne dissented, and Mr. Justice Daniel, although concurring in the
judgment of the Court, dissented from its reasoning.
After considering the rules governing navigation upon
the river Ohio, in certain cases of collision and jettison,1 the
Court made a lasting contribution to the jurisprudence of the
country in the extension of the national admiralty and maritime jurisdiction, in the case of the Propeller Genesee Chief
et al. v. Fitzhugh et al.2
1 Williamson et al. v. Barrett, 13 Howard, o101 (1851). Lawrence v. Minturn,
17 Howard, too (1854).
2 12 Howard, 443 (1851).
ï~~ADMIRALTY JURISDICTION ON THE LAKES.
365
An Act of Congress passed on the 26th of February,
I845, had extended the jurisdiction of the District Courts to
certain cases upon the Great Lakes and navigable waters connecting the same, and it was held in a memorable opinion by
Chief Justice Taney that this act was Constitutional.
"These lakes," said he, "are in truth inland seas. Different States
border on them on one side, and a foreign nation on the other. A
great and growing commerce is carried on upon them between different
States and a foreign nation which is subject to all the incidents and
hazards that attend commerce on the ocean. Hostile fleets have encountered on them, and prizes been made, and every reason which existed
for the grant of admiralty jurisdiction to the General Government on the
Atlantic Seas applies with equal force to the lakes. There is equal
necessity for an instance and for a prize power of the Admiralty Court
to administer international law, and if the one cannot be established,
neither can the other.... The only objection made to this jurisdiction is that there is no tide in the lakes or the waters connecting them;
and it is said that the admiralty and maritime jurisdiction, as known and
understood in England and in this country at the time the Constitution
was adopted, was confined to the ebb and flow of the tide. Now there is
certainly nothing in the ebb and flow of the tide that makes the waters
peculiarly suitable for admiralty jurisdiction, or anything in the absence
of a tide that renders it unfit. If it is a public navigable water on
which commerce is carried on between different States and nations, the
reason for the jurisdiction is precisely the same. And if a distinction
is made on that account, it is merely arbitrary, without any foundation
in reason; and, indeed, would seem to be inconsistent with it."
From this judgment Mr. Justice Daniel dissented, as he
had always done upon every notable extension of the admiralty jurisdiction, and in an opinion delivered by Mr. Justice
Wayne in Fretz et al. v. Bull et al.,' it was held in expansion of the doctrine of Waring v. Clarke,' that the admiralty
112 Howard, 466 (1851).
2 5 Howard, 441 (1847).
ï~~366 THE SUPREME COURT OF THE UNITED S TA TES.
jurisdiction of the United States extended to collisions on the
Mississippi River above tide-waters. From this decision Mr.
Justice Daniel again dissented.
It was from the consideration of questions such as these
that the Court glided at a single turn to the brink of a fearful precipice. No monitory shuddering warned them of impending ruin. The broad current of decision and of argument
flowed on as usual, unbroken by hidden obstructions or whirling eddies, as smooth as the glassy surface of a descending
stream upon the very edge of its fall. In a moment they
became involved. The wild passions of the Kansas-Nebraska
struggle had reached the Court. The agony of conflict between slavery and freedom, which touched the tongue of
Phillips with fire and raised the soul of Sumner to the stars,
had wrapped them in its frenzy, and in a moment of bewilderment they believed that they had the judicial power to
deal with a political and moral question, and by a judgnient, which they vainly endeavored to induce the country to
believe was not extra-judicial, to settle the most agitated
question of the day. The judgment was pronounced, but was
promptly reversed by the dread tribunal of War.
At the December Term, in the year 1856, the case of
Dred Scott, Plaintiff in error, v. John F. A. Sandford stood for
a second argument, on two questions stated by an order of
the Court to be argued at the bar. The first question was
whether Congress had Constitutional authority to exclude
slavery from the Territories of the United States, or in other
words whether the Missouri Compromise Act, which excluded
slavery from the whole of the Louisiana Territory, north of
the parallel 360 30' was a Constitutionally valid law. The
second question was whether a free negro of African descent,
whose ancestors- were imported into this country and sold as
ï~~THE DRED SCOTT CASE.
867
slaves, could be a citizen of the United States, under the Judiciary Act, and as a citizen could sue in the Circuit Court
of the United States.'
The action had been brought by Scott in the Circuit
Court of the United States for the District of Missouri, to establish the freedom of himself, his wife and their two children.
In order to give the Court jurisdiction of the case, he described himself as a citizen of the State of Missouri, and the
defendant, who was the administrator of his reputed master,
as a citizen of the State of New York. A plea to the jurisdiction was filed, alleging that the plaintiff was not a citizen
of Missouri, because he was a negro of African descent, whose
ancestors were of pure African blood, and were brought into
this country and sold as slaves. To this plea there was a
general demurrer, which was sustained by the Court and the
defendant was ordered to answer over. A plea to the merits
was then entered, to the effect that the plaintiff and his wife
and children were negro slaves, the property of the defendant.
The case went to trial, and the jury, under an instruction
from the Court upon the facts of the case that the law was
with the defendant, found a verdict against the plaintiff, upon
which judgment was entered, and the case was then brought
upon exceptions by writ of error to the Supreme Court of the
United States.
It is clear that the first question raised by the record
arose under the plea to the jurisdiction of the Circuit Court,
and after a careful study of the opinions and dissenting opinions, it is equally clear that if it had been decided by the
Supreme Court that Scott was not a citizen by reason of his
SIn stating these questions, I have followed the language of Mr. George
Ticknor Curtis, one of the counsel who argued the case, whose full and accurate
knowledge of the inside history of the case exceeds that of any other man living.
ï~~368 THE SUPREME COURT OF THE UNITED STATES.
African descent, the only thing that could be properly done
would be to direct the Circuit Court to dismiss the case for
want of jurisdiction, without looking to the question raised by
the plea to the merits. But if the Court should decide that
he was a citizen notwithstanding his African descent, then the
question raised by the plea to the merits relating to his personal status as affected by his residence in a free territory and
his return to Missouri would have to be acted upon. This
latter question involved the Constitutional power of Congress
to prohibit slavery in that part of the Louisiana territory purchased by the United States from France, and also the collateral question as to the effect to be given to a residence in
the free State of Illinois, and a subsequent return to Missouri.
Upon an action brought in the State Court many years prior,
the Supreme Court of Missouri had held Scott to be still a
slave, upon the broad ground that no law of any other State
or Territory could operate in Missouri upon personal status,
even if he did become an inhabitant of such other State or
Territory.
The case was first argued before the Supreme Court of
the United States at the December Term of 1855, and it was
found, after consideration and comparison of views, that it was
not necessary to decide the question of Scott's citizenship
under the plea to the jurisdiction, but that the case should be
disposed of by an examination of the merits. Mr. Justice
Nelson was assigned to write the opinion of the Court upon
this view of the case, from which, however, Justices McLean
and Curtis dissented. The opinion prepared by Nelson, judging from its internal evidence, as well as the history of it
given by him,' was designed to be delivered as the opinion of
I See letter of Mr. Justice Nelson to Mr. Tyler, in Tyler's "Memoir of Taney,"
Chap. V, p. 385.
ï~~THE DRED SCOTT CASE. 369
the majority of the Bench, and in disposing of the plea to the
jurisdiction, he said: "In the view which we have taken of
the case, it will not be necessary to pass upon this question,
and we shall, therefore, proceed at once to an examination of
the case upon its merits. The question upon the merits, in
general terms, is whether or not the removal of the plaintiff,
who was a slave, with his master from the State of Missouri
to the State of Illinois with a view to a temporary residence,
and after such residence and return to the slave State, such
residence in the free State works emancipation." The opinion
then disposed of the case upon the ground that the highest
Court in the State of Missouri had decided that the original
condition of Scott had not changed and that this was a question
of the law of Missouri, on which the Supreme Court of the
United States should follow the law as it had been laid down
by the highest tribunal of the State. The conclusion reached
by the opinion was not that the case should be dismissed for
want of jurisdiction, but that the judgment of the Circuit
Court which had held Scott to be still a slave should be
affirmed. Shortly after this, however, a motion was made by
Mr. Justice Wayne, in a conference of the Court, for a reargument of the case, and the two questions, which we have
stated at the outset of our discussion of the matter, were
carefully framed by the Chief Justice to be argued at the bar
de novo. The cause was argued by Montgomery Blair and
George Ticknor Curtis, in behalf of the plaintiff in error,
and Reverdy Johnson and Senator Geyer, of Missouri, for the
slave-owner.
At the second argument Mr. Justice Wayne became fully
convinced that it was practicable for the Supreme Court of
the United States to quiet all agitation on the question of
slavery in the Territories by affirming that Congress had
24
ï~~370 THE SUPREME COURT OF THE UNITED STATES.
no Constitutional power to prohibit its introduction, and, unfortunately for himself, his associates, and the country, persuaded the Chief Justice, and Justices Grier and Catron of
the public expediency of this course. The opinion of the
Court was then pronounced by Chief Justice Taney,' in which
Mr. Justice Wayne absolutely concurred. Mr. Justice Nelson
read his own opinion, which had been previously prepared as
that of the Court. Mr. Justice Grier concurred in Nelson's
opinion, and was of opinion also that the Act of 6th March,
1820, known as the " Missouri Compromise," was unconstitutional and void, as stated by the Chief Justice. Justices Daniel
and Campbell concurred generally with the Chief Justice, while
Mr. Justice Catron thought that the judgment upon the plea in
abatement was not open to examination in this Court, and concurred generally with the Chief Justice upon the other points
involved. Justices McLean and Curtis alone dissented, the
former stating that the judgment given by the Circuit Court
on the plea in abatement was final. He was also of opinion
that a free negro was a citizen, and that the Constitution
justified the Act of Congress in prohibiting slavery, and further that the judgment of the Supreme Court of Missouri
pronouncing Scott to be a slave was illegal, and of no authority in the Federal Court.
Without entering into technical niceties, it is perhaps
sufficient to say that the general judgment of the profession,
entirely irrespective of the political questions involved, is to
the effect that the Court after holding, upon consideration of
the plea in abatement, that Dred Scott was not a citizen of
the United States, and that therefore the Circuit Court had
no jurisdiction, ought to have dismissed the case, without
1The exact date, March 6th, I857, is perhaps noteworthy, being just two days
after the inauguration of James Buchanan as President.
ï~~THE DRED SCOTT CASE.
871
entering upon the consideration of the second question involved, and that in doing so they transcended the proper
bounds of judicial authority, and indulged in mere obiler dicta
of no legal validity or conclusiveness. Although an elaborate
effort was made by Mr. Reverdy Johnson, in a letter written
to a public meeting in Baltimore, in relation to the manner
of Chief Justice Taney in handling the case, to justify the
action of the majority of the Court, yet it is clear that Mr.
Johnson's argument vanishes into thin air, as soon as it is
remembered that every word written and read by Justices
McLean and Curtis was written and read as their dissent
from the opinion of the Chief Justice, which they had heard
read in conference, and in which the doctrine was elaborately
maintained that Congress had no Constitutional power to exclude slavery from any Territory of the United States. The
propriety with which any member of the Bench could touch
this question-the test of whether his views were judicial or
extra-judicial-depended simply and solely upon his view that
the Circuit Court had or did not have jurisdiction on the facts
averred in the plea to the jurisdiction.'
No portion of Chief Justice Taney's opinion is more labored
or constrained than the effort to show that, after disposing of
the plea in abatement, which, when sustained as it had been
upon demurrer, ousted the jurisdiction of the Court, the Court
had still a right to enter upon a discussion of the merits of
the case.2 And no part of the dissenting opinion of Mr. Justice Curtis is more powerful, from a legal point of view, than
his consideration of the doctrines of pleading involved, and
fairly arising out of the state of the record.3
1 George Ticknor Curtis, "Memoir of Benj. Robbins Curtis," Vol. I, p. 238.
2 See opinion of Chief Justice Taney in Dred Scott v. Sandford, i9 Howard, 393 (1856).
3 See dissenting opinion of Mr. Justice Curtis, Ibid., 564.
ï~~372 THE SUPREME COURT OF THE UNITED STATES.
The Chief Justice used the following language, after having
shown historically that at the time of the adoption of the
Constitution of the United States free negroes were not citizens: "They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to
associate with the white race either in social or political relations; and so far inferior that they had no rights which the
white man was bound to respect; and that the negro might
justly and lawfully be reduced to slavery for his benefit. He
was bought and sold, and treated as an ordinary article of
merchandise and traffic whenever a profit could be made by it.
This opinion was at that time fixed and universal in the civilized portion of the white race."
The injustice which has been done to Chief Justice Taney
consists in the partisan use which was made of the single
phrase, "That they had no rights which the white man was
bound to respect." The words were violently torn from the
context of the opinion, and quoted as though the Chief Justice had intended to express his own individual views upon
the question, naturally arousing a storm of indignation at
their inhumanity and barbarity. That such were not the
personal views of the Chief Justice, no carefull or conscientious student of his life can for a moment suppose. He had
long before manumitted all his own slaves, had never refused
his professional aid to negroes seeking the rights of freedom;
had even defended a person indicted for inciting slaves to insurrection, at a time when the community were violently excited
against the offender and against Taney himself for his defense, and, when pressed with the gravest business, had been
known to stop in the streets of Washington to help a negro
child home with a pail of water. He was moreover a man of
the greatest kindness, charity and sympathy. The real wrong
ï~~THE IDLENESS OF TANEY'S OPINION.
373
doing of which the Chief Justice was guilty was in attempting by extra-judicial utterances to enter upon the settlement
of questions purely political, which were beyond the pale of
judicial authority, and which no prudent judge would have
undertaken to discuss. It was a blunder worse than a crime,
from the consequences of which he and his associates can
never escape.
So far as his historical illustrations were concerned, they
were fully met by the dissenting opinion of Mr. Justice Curtis, who showed by decisions of the Supreme Court of North
Carolina that free colored persons born within the State
were citizens of that State, and by logic, were therefore, citizens of the United States. It was all idle, as an eminent
lawyer and statesman has observed, himself of the same
political faith as the Chief Justice,1 to argue that in the
earliest English days there were slaves who had no rights;
that if a stranger slew one, his lord recovered the damage, or
if his master killed him, he was but a chattel the less; that
serfs were goods, and that the Judges of the time of Charles II
had united in declaring negroes to be merchandise liable to
forfeiture, and that years after our independence they were
treated in British statutes as merchandise, with rum and iron,
and that slavery existed and had been recognized by the laws
of every State when the Constitution was formed. There was
a higher law between the parties, and no general agreement
could prevail against natural right. Nor was it possible to
believe that when the Fathers of the Republic said all men
were free and equal, they meant only white men, and even
if they did, they had no power to bind their descendants
forever to a doctrine so unjust. And this view is concurred
1 See Annual Address by Clarkson N. Potter before the American Bar Association, 188i, "Fourth Annual Report of Amer. Bar Assn.," p. 196.
ï~~374 THE SUPREME COURT OF THE UNITED STATES.
in by a gentleman of the highest professional distinction,
himself a lifelong member of the party of Chief Justice Taney,
in a recent exhaustive study of the decisions of the Chief
Justice, in which he states that although the opinion displays
great ingenuity and knowledge of the political history of the
country, yet it seems to him that the Chief Justice, in an
anxious endeavor to carry out the views so often expressed
by him as to the right of the individual States to deal exclusively with the subject of this domestic relation, had been
carried far beyond the proper limitations within which it
should have been confined Dr. Von Holst pronounces the decision a political enormity, based upon the fact that the decision
went beyond the record, and that the Chief Justice and the
concurring Associates indulged in the most palpable sophisms
upon the extent of their appellate jurisdiction, confounding
the method of procedure upon writs of error from the judgments of State Courts, with that which ought to prevail when
the judgment of a United States Circuit Court was brought
up, and it appeared in the record that the lower court had
no jurisdiction.2
It is not necessary to consider the political aspect of the
case, nor to answer, as has been elaborately done, the assault
made by Mr. Seward in the Senate of the United States upon
the Supreme Court, in which he distinctly hinted that a corrupt political bargain had been made between the Chief Justice and President Buchanan at the time of his inauguration.
Nor is it necessary to consider whether authoritative proof
SSee "Constitutional Development in the United States as Influenced by Chief
Justice Taney," by Geo. W. Biddle, Esq., of Philada., published in "Constitutional
History of the United States as seen in the Development of American Law."
2 Von Holst's "Constitutional and Political History of the United States from
1856 to 1859," Vol. V, p. 23-46.
ï~~WISCONSIN DEFIANT.
375
can be produced in support of Mr. Ashley's contention, which
has been adopted by Dr. Von Holst, that a systematic effort
had been made by the slave-holders to secure a preponderatting position of influence in the Supreme Court of the United
States in order to secure the judgment. The high character
of the Justices, and the length of time that they had held
their offices would refute any such statement. Although bitter partisans might assume that some such deep laid plot had
been successfully carried out, yet no one who temperately and
calmly considers the facts as developed from the decisions of
the Supreme Court itself, and the correspondence of the day,
can arrive at such a conclusion, although he cannot fail to
lament that in yielding to a fatal delusion Mr. Justice Wayne,
in a moment of infatuation, became convinced that the Court
could settle political and moral questions for all time, and that
too on the wrong side, and thus did more to undermine the
influence of this great tribunal, and prostrate the personal
influence of its members, as well as blacken their record,
than can be predicated of any other cause to be found in the
length and breadth of our judicial history.'
In less than two years after the decision in the Dred
Scott case had been pronounced the State of Wisconsin arrayed herself in an attitude of defiance to a solemn judgment
of the Supreme Court of the United States, and Chief Justice
Taney must have recalled the similar experience of Chief
Justice Marshall, when his judgment in the Cherokee case
had been scoffed at by the State of Georgia. An effort had
1 Mr. Bryce, in his work on "The American Commonwealth," Vol. I, ch. 24,
speaks of the Dred Scott case, which, in a moment of weakness, induced the Court
to overstep the legitimate bounds of its authority, as one of the misfortunes to
be ranked with the interposition of the Court in the Presidential Electoral count
dispute of 1877, and the reversal of its earlier decisions upon the legality of legal
tender notes.
ï~~376 THE SUPREME COURT OF THE UNITED STATES.
been made to enforce the provisions of the Fugitive Slave
Law, and the Supreme Court of Wisconsin pronounced the
Act unconstitutional and void, and resisted to the utmost its
administration and enforcement by the Federal authorities.
The question arose in the case of Ableman v. Booth.' In
delivering the opinion of the Court, the case being argued by
Attorney-General Jeremiah S. Black, for the plaintiffs in
error, but no counsel appearing upon the other side, Chief
Justice Taney declared that it appeared that a Judge of the
Supreme Court of Wisconsin had claimed and exercised the
right to supervise and annul the proceedings of a Commissioner of the United States, and to discharge a prisoner who
had been committed for an offence against the laws of the
Federal Government, and that this exercise of power had been
afterwards sanctioned and affirmed by the Supreme Court of
the State; that the State Court had gone even farther, and
claimed and exercised jurisdiction over the proceedings and
judgment of a District Court of the United States, and upon
a summary and collateral proceeding of habeas corpus, had
set aside and annulled its judgment, and discharged a prisoner who had been tried and found guilty of an offence
against the laws of the United States, and sentenced to imprisonment; and that it further appeared that the State Court
had not only claimed and exercised this jurisdiction, but had
also decided that their decision was final and conclusive upon
all the Courts of the United States, and had ordered their
clerk to disregard and refuse obedience to the writ of error
issued by the Supreme Court pursuant to the Act of Congress of 1789, to bring up for examination and revision the
judgment of a State Court. He said:
1 21 Howard, 506 (1858).
ï~~TANE Y ON FEDERAL SUPREMACY.
377
"These propositions are new in the jurisprudence of the United
States, as well as of the States; and the supremacy of the State Courts
over the Courts of the United States in cases arising under the Constitution and laws of the United States is now, for the first time, asserted
and acted upon in the Supreme Court of a State.... It would seem
to be hardly necessary to do more than to state the result to which.this
decision of the State Court must inevitably lead. It is of itself a sufficient and conclusive answer; for no one will suppose that a Government
which has now lasted nearly seventy years, enforcing its laws by its own
tribunals, and preserving the Union of the States, could have lasted a
single year, or fulfilled the high trust committed to it, if offenses against
its laws could not have been punished without the consent of the State
in which the culprit was found."
He then proceeds, by a course of unanswerable logic,
to demonstrate that such a claim would result in the most
disastrous consequences, and that it would lead, if persisted in, to a complete destruction of the harmony and peace
of the Union. After pointing out that it was evident, under
our system, that the Constitution, as the fundamental and
supreme law, had vested in the Supreme Court the power of
final settlement of all such questions, he reasons thus with
the State authorities:
"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 natural and just pride of 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 voluntary act of the people of the several States,
deliberately done for their own protection and safety against injustice
from one another; and their anxiety to preserve it in full force in all its
powers, and to guard against resistance to, or evasion of its authority on
the part of a State, is proved by the clause which requires that the members of the State Legislatures, and all Executive and Judicial officers of
ï~~378 THE SUPREME COURT OF THE UNITED STATES.
the several States (as well as those of the General Government), shall be
bound by oath or affirmation to support this Constitution.... Now
it certainly can be no humiliation to a 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,
the highest honor of sovereignty is untarnished faith, and certainly no
faith could be more deliberately 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."
The judgment of the Supreme Court of Wisconsin was,
therefore, reversed.
But few other cases of importance occurred before the
actual outbreak of the Civil War. In the case of the Commonwealth of Kentucky v. Dennison,1 the Chief Justice maintained
the following propositions: That in a suit between two States,
the Supreme Court had original jurisdiction without further
Acts of Congress regulating the mode in which it shall be exercised, and that suit by or against the Governor of a State in
his official capacity is a suit by or against the State. This
was in conflict with the doctrine so elaborately expressed and
argued for the first time with so much ability by Mr. Justice
Iredell in his dissenting opinion in the famous case of Chisholm's Exrs. v. The State of Georgia,2 but with an appreciation
of the difficulty that might exist in enforcing a decree entered
against a recalcitrant State, the Chief Justice, in tones which
have been referred to as pathetic, declared that if the Governor refused to discharge his duty there was no power dele
124 Howard, 66 (186o).
s 2 Dallas, 419 (1793)
ï~~THE MERRYMAN CASE.
379
gated to the General Government, either through the judicial
department or any other department, to use any coercive means
to compel him.
Truly it seemed as if the Chief Justice, at the end of his
long career, had entered a cloud, and found his authority contested at every turn; for in the famous Merryman case,1 which
involved the right of the President or his delegate to suspend
the writ of habeas corpus, he found himself unable to enforce
his authority, where a citizen of Baltimore had been arrested
by a military force acting under the orders of a Major General of the United States Army, commanding in the State of
Pennsylvania, and had been committed to the custody of the
General commanding Fort McHenry, then a part of the military district of Maryland. Upon an application for a writ of
habeas corpus, the Chief Justice, sitting at chambers, directed
the commandant at the Fort to produce the body of the petitioner upon the next day. This was promptly declined, on the
ground that the prisoner had been arrested upon a charge of
treason, and was "publicly associated with, and holding a commission as Lieutenant in a company, having in their possession
arms belonging to the United States, and avowing his purpose
of armed hostility against the Government, and also because
the officer having the petitioner in custody was duly authorized
by the President of the United States in such cases to suspend the writ of habeas corpus for the public safety." The
Chief Justice in a most elaborate opinion upon the law relating to the writ of habeas corpus held these reasons to be insufficient, and that the petitioner was entitled to be set at liberty.
He found himself unable, however, to enforce his decree.2
' I Campbell, 246 (1868).
2 This case led to a most earnest controversy among eminent jurists all over
the country in relation to the power of the President to suspend the writ of
ï~~380 THE SUPREME COURT OF THE UNITED STATES.
In reviewing the decisions delivered by the Supreme
Court during the Chief Justiceship of Mr. Taney, it is clear
that the doctrines announced by the Court are characterized
by a much closer adherence to the language of the Constitution than had been common in the days of Marshall, and
that as a whole the authority of the States had been extended
and supported, upon numerous occasions, in a manner which
qualified, if it did not restrict, the principles announced by
the great Chief Justice. The theories of the Constitution
entertained by Marshall and Taney were those of their
respective parties, and are irreconcilable. Without imputing
to either a desire to extend unnecessarily or immoderately
the doctrines of their schools, it can be safely asserted that
although partisan politics should have no place upon the
Bench, yet it is impossible to expect men to divest themselves of certain fundamental views in relation to the nature
of our government simply because they have ascended the
Bench and thrown aside the contentions of the political
arena.1 In later years a general recurrence to the doctrines
of Marshall became unavoidable, and the tendency has been
steadily in the direction of the proper logical development of
his principles, which have proved themselves to be the safeguards of national institutions and the life of national authority. At the same time a debt of gratitude is due to those
habeas corpus, the affirmative being sustained by such eminent jurists as Horace
Binney, of Philadelphia, Benjamin R. Curtis, of Boston, and Chief Justice Parker,
of Massachusetts; while the contrary was maintained by a host of less distinguished writers, whose pamphlets constitute an interesting chapter in Constitutional law. The action of the President was sustained by public opinion arising
out of the extreme peril of the situation, and the fact that armed treason had taken
the field against the Federal authorities.
1 An interesting paper, entitled "Partisanship in the Supreme Court," is to be
found in the North American Review, Vol. CXXXII, 176, written by United States
Senator John T. Morgan.
ï~~GR O WTH OF THE BUSINESS OF THE COURT,
381
Judges who refused to prostrate the rights of the States, and
to carry to violent extremes, doctrines which, if pressed beyond
their proper and legitimate sphere, would result in absolute
centralization and the destruction of the autonomy of the
States.
NOTE.
The following interesting facts, showing the increase of
the business of the Court, are stated by Mr. Justice Strong:
In 18oi, when John Marshall was appointed Chief Justice of that
Court, the number of cases brought into it for adjudication was only ten.
The entire number during the five next following years, including both
writs of error and appeals, was only one hundred and twenty, or an
average of twenty-four for each year. Thenceforward the business of the
Court increased slowly, until, in the period between 1826 and 1830, the
aggregate number of cases brought into it was two hundred and eightynine-the average being about fifty-eight a year. In 1836, when Roger
B. Taney succeeded Marshall as Chief Justice, the number was only
thirty-seven. From 1830 to 1850, the increase was also very gradual.
Within the five years ending with 1850, the number of cases brought
into the Court, including those docketed and dismissed without argument,
was three hundred and fifty-seven, or an average of seventy-one each
year. The Court was then able to dispose of its entire docket during a
session of three months. But, since the year 1850, the increase has been
much more rapid. Within the five years ending with I88o, the number
of new cases has been nineteen hundred and fifty-three, averaging more
than three hundred and ninety-one each year. This exhibits, certainly, a
very remarkable increase, serious in its consequences.-" The Needs of
the Supreme Court," North American Review for May, I881, Vol
CXXXII, 437.
ï~~382 THE SUPREME COURT OF THE UNITED S TA TES.
CHAPTER XVII.
SIXTH EPOCH: 1861 to 1870: OUTBREAK OF THE CIVIL WAR: CHARACTER OF CASES
BEFORE THE COURT: CALIFORNIA LAND CLAIMS: MEXICAN, SPANISH AND
FRENCH TITLES: THE PRIZE CASES: RIGHTS AND LIABILITIES OF NEUTRALS
AND BELLIGERENTS: A NATIONAL CRISIS: VALUE OF THE PRINCIPLES ESTABLISHED BY MARSHALL AS SHOWN IN THE TAX CASES: DEATH OF TANEY: APPOINTMENT OF SALMON P. CHASE AS HIS SUCCESSOR: SKETCHES OF CHIEF
JUSTICE CHASE AND OF ASSOCIATE JUSTICES,CLIFFORD, SWAYNE, MILLER,
DAVIS AND FIELD: CASES GROWING OUT OF A CONDITION OF WAR: THE JURISDICTION OF MILITARY COMMISSIONS: QUESTIONS OF PRIZE: BLOCKADE: MRS.
ALEXANDER'S COTTON: THE ATLANTA: EFFORTS TO RESTRAIN THE ENFORCEMENT OF THE RECONSTRUCTION ACTS: EX PARTE MILLIGAN: TEXAS V. WHITE:
CASES GROWING OUT OF THE REBELLION: THE CONFISCATION ACT: CAPTURED
AND ABANDONED PROPERTY ACT: EFFECT OF PRESIDENTIAL PARDON: RIGHTS
OF OFFICERS AND SOLDIERS OF THE ARMY OF THE UNITED STATES: CALIFORNIA LAND TITLES: THE OBLIGATION OF CONTRACTS: THE RIGHT OF THE FEDERAL JUDICIARY TO DISREGARD STATE DECISIONS ON QUESTIONS OF COMMERCIAL LAW: PATENTS: POLICE POWERS OF THE STATES: THE COMMERCE CLAUSE:
CRANDALL v. STATE OF NEVADA: STATE FREIGHT TAX: GILMAN V. CITY OF
PHILADELPHIA: MISCELLANEOUS CASES.
AT the commencement of December Term, 186i, there
were three vacancies upon the Bench of the Supreme Court, occasioned by the deaths of Justices
Daniel and McLean, and by the resignation of Mr. Justice
Campbell, who had espoused the cause of Secession. Chief
Justice Taney, and Justices Clifford and Catron were absent, the
first on account of age and infirmities, the last, also an aged
man, on account of illness. The work was done by less than
a majority. Mr. Justice Wayne, the senior associate, who had
taken his seat upon the bench before the death of Marshall,
presided, assisted by Justices Nelson, Grier and Swayne, the
latter being appointed after the beginning of the term.
ï~~FIRST YEAR OF THE CIVIL WAR.
383
At the opening of the proceedings Mr. Edward Bates,
Attorney-General of the United States, declared that the
Court had held no sadder term since its organization. "Your
lawful jurisdiction," said he, "is practically restrained. Your
just power is diminished, and into a large portion of our
country your writ does not run; and your beneficent authority to administer justice according to law is for the present
successfully denied and resisted. The country presents a
ghastly spectacle. A great nation lately united, prosperous
and happy, and buoyant with hopes of future glory, is torn
into warring fragments, and the land, once beautiful and
rich in the flowers and fruits of peaceful culture, is stained
with blood and blackened, with fire. In all that wide space
from the Potomac to the Rio Grande, and from the Atlantic
to the Missouri, the still, small voice of legal justice is
drowned by the incessant roll of the drum and the deafening
thunder of artillery. To that extent your just and lawful
power is practically annulled, for the laws are silent amidst
arms."
Although war was actually raging no traces of its ravages can be found in the Reports. The serene atmosphere of
the Court had not yet been disturbed. But few barristers
had donned the uniform of the soldier, and the Bench had
not yet been invited to consider questions of prize. The
Judges still sat to discuss matters of account, patents, admiralty, agency, practice, land claims and trusts, and in the
case of the Jefferson Branch Bank v. Skelly,' exercised the
highest of their prerogatives, in determining that the decision
of a State Court upon a matter of contract made by a State
with the incorporators was not conclusive of the question if
1 Black, 436 (186r).
ï~~384 THE SUPREME COURT OF THE UNITED STATES.
the action of the State, sustained by her own tribunals, impaired the validity of that contract.
In the case of The Ohio and Mississ4oi Rail Road Company v. Wheeler,3 Chief Justice Taney, in affirmation of the
line of reasoning pursued in several former cases,2 held that
where a corporation is created by the laws of a State the
legal presumption is that its members are citizens of the
State in which alone it has a corporate existence, and a suit
by or against it in its corporate name must be presumed to
be a suit by or against citizens of the State which created it,
and no averment to the contrary would be tolerated in support of an effort to withdraw the suit from the jurisdiction of
the Federal Courts.
Land claims of immense magnitude, involving nice questions, arising under Mexican and Spanish laws in force in
the State of California, and claims arising under French and
Spanish laws under the Louisiana Treaty, taxed the energy
of both bench and bar.3 These cases were argued in the
most exhaustive manner, and were discussed at great length
upon the bench.
But in 1862 the Prize Cases arose, in which the rights
and liabilities of neutrals as to blockade, and violations of
blockade, the President's right to institute a blockade, and
what constituted sufficient evidence of a Presidential proclamation, were discussed at great length, and conclusions were
reached which have become incorporated into the great body
of International Law.4
1I Black, 286 (1861).
SLouisville, Cincinnati and Charleston R. R. Co. v. Letson, 2 Howard, 497
(1844). Marshall v. The Baltimore and Ohio R. R. Co., 16 Howard 314 (1853).
Covington Drawbridge Co. v. Shepherd el al., 20 Howard, 227 (1857).
3 United States v. Andres Castillero, 2 Black, 18 (1862).
* The Prize Cases, 2 Black, 635, (1862).
ï~~WAS THERE A WAR?
385
The importance of these decisions cannot be over-estimated. There are crises in jurisprudence as well as in war.
The fate of our nation hung no less upon the determinations of
the Supreme Court, than upon the gathering of armies and the
fitting out of fleets. The proclamations of President Lincoln
of April 19th and 27th, 186i, the blockade of the Southern
ports, and the capture on the high seas of ships carrying
contraband goods, or of ships owned by citizens residing in
the rebellious States raised the vital questions, Was there a
war? Could there be prize? The real peril of the situation
is best described by Mr. Richard H. Dana, Jr., one of the
counsel for the Government, in a letter written upon the 9th
of March, 1863. He said:
"The Government is carrying on a war. It is exerting all the powers
of war. Yet the claimants of the captured vessels not only seek to save
their vessels by denying that they are liable to capture, but deny the
right of the Government to exercise war powers,-deny that this can
be, in point of law, a war. So the Judiciary is actually, after a war of
twenty-three months' duration, to decide whether the Government has
the legal capacity to exert these war powers.... Contemplate, my
dear sir, the possibility of the Supreme Court deciding that this blockade is illegal! What a position it would put us in before the world,
whose commerce we have been illegally prohibiting, whom we have unlawfully subjected to a cotton famine, and domestic dangers and distress
for two years! It would end the war, and where it would leave us
with neutral powers, it is fearful to contemplate! Yet such an event is
legally possible,-I do not think it probable, hardly possible, in fact.
But last year I think there was danger of such a result when the blockade was new, and before the three new Judges were appointed."'
'Charles Francis Adams, "Life of Richard Henry Dana," Vol. II, p. 267.
The three new judges referred to were Swayne, Miller and Davis, all appointed
by President Lincoln in 1862. As Mr. Adams points out before they took their
seats, the Supreme Court was composed of Chief Justice Taney, and the five
Associate Justices, Wayne, Catron, Nelson, Grier, and Clifford, all Democrats, and
25
ï~~386 THE S UPR E MJE CO UR T OF THE UNITED S TA TES.
The cases were argued by Mr. Dana, Mr. Evarts and Attorney-General Bates, for the United States, and by Messrs.
Carlisle, Lord, Edwards and Bangs for the claimants, in a
manner worthy of the issue and of the tribunal.
The opinion of the Court was delivered by Mr. Justice
Grier:
"This greatest of civil wars," said he, "was not gradually developed
by popular commotion, tumultuous assemblies, or local unorganized insurrections. However long may have been its previous conception, it
nevertheless sprung forth suddenly from the parent brain, a Minerva in
the full panoply of war. The President was bound to meet it in the
shape it presented itself without waiting for Congress to baptize it with
a name, and no name given to it by him or them could change the
fact. It is not the less a civil war, with belligerent parties in hostile
array, because it may be called an 'insurrection' by one side, and the
insurgents be considered as rebels or traitors.... As soon as the news
of the attack on Fort Sumter and the organization of a government by
the seceding States, assuming to act as belligerents, could become known
in Europe, to wit: on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality, 'recognizing hostilities as existing
between the Government of the United States of America and certain
States, styling themselves the Confederate States of America.' This was
immediately followed by similar declarations, or silent acquiescence by
other nations. After such an official recognition by the sovereign, a citizen of a foreign State is estopped to deny the existence of a war, with
all its consequences as regards neutrals. They cannot ask a Court to
affect technical ignorance of the existence of a war which all the world
acknowledges to be the greatest civil war known in the history of the
human race, and thus cripple the arm of the Government and paralyze
three of them appointed from slave-holding States. What made the situation more
grave was the fact that the Chief Justice had already from his Circuit bench in
the Merryman case challenged the legality of that most important act of President
Lincoln, the suspension of the Habeas Corpus Act. A graphic statement of the
crisis in public affairs is given in a letter of Mr. Thornton K. Lothrop written to
Mr. Adams. "Life of Dana," by C. F. Adams Vol. II, Appendix, p. 395.
ï~~BLOCKADE OF SOUTHERN PORTS.
887
its power by subtle definitions and ingenious sophisms. The law of nations is also called the law of nature; it is founded on the common consent, as well as the common sense of the world. It contains no such
anomalous doctrine as that which this Court is now for the first time
desired to pronounce, to wit: that insurgents who have risen in rebellion
against their sovereign, expelled her courts, established a revolutionary
government, organized armies and commenced hostilities, are not enemies
because they are traitors; and a war levied on the Government by traitors
in order to dismember and destroy it, is not a war, because it is an
insurrection."
Having determined, therefore, that the President had a
right jure belli, to institute a blockade of ports in the possession of the States in rebellion, which neutrals were bound to
regard, Mr. Justice Grier went on to show that the term
"enemy" was properly applicable to all persons residing
within enemy territory whose property might be used to increase the revenues of the hostile power, though not foreigners. "They have cast off their allegiance," said he, "and
made war on their government, and are none the less enemies because they are traitors."
In the case of a vessel owned by foreigners he held that
the cargo, having been shipped after notice of the blockade,
should follow the fate of the vessel, and in each and every
case the judgment of condemnation in the court below was
affirmed.
From these doctrines Mr. Justice Nelson dissented in a
very elaborate opinion. His conclusions were that no civil
war existed between the Federal government and the States
in insurrection, until recognized by the Act of Congress of
13th of July, i86i, and that the President did not possess
the power, under the Constitution, to declare war, or recognize its existence within the meaning of the law of nations,
which carried with it belligerent rights, and thus change the
ï~~388 THE SUPREME COURT OF THE UNITED STATES.
condition of the country and all its citizens from a state of
peace into a state of war. He contended that the decrees of
condemnation ought to be reversed, and the vessels and cargoes restored. In one of the cases Chief Justice Taney and
Justices Catron and Clifford united with him in dissent.
At the same critical hour the inestimable value of the
principles established by Chief Justice Marshall was shown,
in an opinion delivered by Mr. Justice Nelson, in the case of
The People of the State of New York v. Commissioners of
Taxes,' in which it was held that that portion of the capital
of a New York Bank which had been invested in stocks,
bonds or other securities of the United States, was not liable
to taxation by the State. A tax on the loans of the Federal
Government is a restriction, said the Court, upon the Constitutional power of the United States to borrow money, and if
a State had such a right, being in its nature unlimited, it
might be so used as to defeat the Federal power altogether.
Chief Justice Taney was so much indisposed as to be
2 Black, 620 (1862). The same conclusion was reached in the Bank tax case,
2 Wallace, 200oo (1864), where it was held that a State tax on the capital of a
State bank is a tax on the property of the institution, and when it consists of
the stocks of the United States such tax is invalid. See also Van Allen v. Assessors, 3 Wallace, 573 (1865) in which a distinction was drawn between a tax
on the capital of the bank and a tax upon shares held in a bank, which were held
to be a distinct and independent interest or property held by the shareholder, and
that Congress had legislated in such a manner as to leave the shares of the stockholders subject to State tax. United States bonds were not liable to taxation under
State legislation. The Banks v. The Mayor, 7 Wallace, 16 (1868). United States
notes issued under the Acts of 1862 and 1863 were not liable to State taxation. Bank
v. Supervisors, Ibid. 26 (1868). A tax imposed by Congress on bank circulation is
Constitutional, Veazie Bank v. Fenno, 8 Wallace, 533 (1869). In all these cases the
opinion was delivered by Chief Justice Chase. In First National Bank v. Commonwealth of Kentucky, 9 Wallace, 353 (1869), it was held in an opinion by Mr. Justice
Miller that though the capital of a bank, invested in Federal securities, could not be
taxed by a State, yet the shareholders might be taxed on their shares. See also R. R.
Co. v. Peniston, 18 Wallace, 5 (1873); The Delaware Railroad Tax Case Ibid. 206, (1873).
ï~~
ï~~Y ny4
" "4.
ï~~SA L MON P. CHASE.
889
unable to sit during 1863, and died in October, 1864.
Salmon P. Chase was commissioned as his successor upon
the 6th of December, of that year. At this time Mr. Chase
was in the fifty-sixth year of his age, but his iron frame and
robust constitution gave promise of a long career. It was not
so ordained. In eight years he succumbed to the effects of
superhuman labor and the exhaustion of the vital forces which
had followed the years of sleepless anxiety attending his exertions as Secretary of the Treasury during the greater part
of President Lincoln's administration. In point of natural
ability he was the equal of any of his predecessors, and their
superior in a commanding and majestic personal presence,
which was in harmony with his great intellectual powers.
Fifteen years of absence from the bar, during which he had
devoted himself almost exclusively to the political questions
of the day, had done much to obscure his fame as a lawyer,
and to dull his law learning by disuse; but he seated himself with ease and grace in the chair of justice, and exhibited
from the outset faculties entirely adequate to the able and
satisfactory discharge of his high duties. " The ability of his
judgments," said Mr. Reverdy Johnson, "the full knowledge
which they displayed, and the admirable judicial style in
which they were rendered, filled the professional mind not
only with admiration, but with wonder." Almost all of the
opinions of the Supreme Court involving questions of international law or of prize growing out of the Civil War, were
written by him, and display not only his thorough familiarity with controlling principles, but his extraordinary skill in
applying them to new and perplexing conditions. They are
remarkable examples of clearness and force.
He was born in Cornish, New Hampshire, on the 13th
of January, i8o8. The blood of the English Puritan and of
ï~~390 THE SUPREME COURT OF THE UNITED S TA TES.
the Scotch Covenanter mingled in his veins, and the sturdy,
resolute and independent traits of his ancestry were fully displayed at every stage of his varied career. He was descended
in the ninth generation from Thomas Chase, of Chesham,
England, and in the sixth from Aquila Chase, who came to
Newbury, Massachusetts, in 1640.
He was the eighth of the eleven children of Ithamar
Chase, and his wife, Jeanette Ralston, a woman of Scotch descent. Of his father's seven brothers, three were lawyers and
graduates of Dartmouth College, one a Senator of the United
States from Vermont, two were physicians, one a Bishop of
the Episcopal Church, and one a farmer. His earliest teacher
was Daniel Breck, afterwards a well-known jurist of Kentucky. At school he was attentive, "full of faith, not much
given to ask the cause of things," as he himself tells us, but
ready to accept what was told him. An amusing incident is
recorded of his effort to set the river Ashuelot on fire. He
had lost his shoe in a pool, and knowing that water could be
dried up by heat, built a fire upon an extemporized raft, and
set it afloat, but soon abandoned the attempt. He lost his
father at an early age, but was cared for by his uncle, the
Bishop, then residing in Ohio, until he was fifteen years
old. He then returned to the family home at Keene, and
in 1824 entered Dartmouth College, from which he graduated
two years later. He then taught school in Washington, D. C.,
while studying law with William Wirt. At this period he
devoted part of his leisure time to light literature, and addressed a poem to the daughters of his preceptor. In 1829
he was admitted to the bar of Washington, but removed to
Cincinnati, then the Queen of the West, where he soon acquired an important practice. He prepared an edition of the
Statutes of Ohio, which for completeness and thoroughness
ï~~SALMON P. CHASE.
391
has never been surpassed, and which was warmly commended
by Chancellor Kent and Mr. Justice Story.
His views in opposition to slavery became pronounced,
and were confirmed by witnessing the destruction of the office of James G. Birney's "Philanthropist" by a pro-slavery
mob. " Freedom of the press and Constitutional liberty," he
solemnly declared, "must live or perish together." A few
months later, in 1837, he became counsel for Matilda, an
alleged fugitive slave, who had been brought from Virginia
by her master to Cincinnati, en route to Missouri. Mr.
Chase argued, upon an application for a writ of habeas
corpus, that when a slave-owner voluntarily brought his slave
into a free State, the slave by that act became free, and could
in no sense be termed a fugitive, or be reclaimed under the
Fugitive Slave Law of 1793. He was unsuccessful; but his
argument made a profound impression. Mr. Birney was then
indicted under a State law for harboring the fugitive, and
was convicted and fined. In the appeal to the Supreme
Court of Ohio Chase purposely omitted to call attention to
the fact that the indictment contained no averment that the
defendant knew the person harbored to be a slave, preferring
to renew his former contention; for if Matilda were not a
slave, Mr. Birney could not be guilty of harboring her as a
fugitive. The Court reversed the judgment upon the technical point, and declined to pass upon the main question, but
directed the argument of Mr. Chase to be published. His
efforts in behalf of freedom were so constant and continuous
that he became known in Kentucky as "Attorney General
for runaway negroes."
In 1841 he became one of the founders of a Liberty
Party. In 1846, with Mr. Seward as a colleague, he argued
before the Supreme Court of the United States the case of
ï~~392 THE SUPREME COURT OF THE UNITED STATES.
John Van Zandt,' who had aided in the escape of slaves, as
it was charged, although the evidence went to show that,
without knowing who they were, he had met them in the
road, and taken them some distance in his wagon. He contended that actual notice of the fact of escape was necessary
under the Act of 1793; that the Act itself was inconsistent
with the Ordinance of 1787 for the government of the Territory Northwest of the Ohio, and was repuguant to the Constitution of the United States. On all of these points he was
unsuccessful. In 1850 he was sent to the Senate of the
United States through the coalition of the Free-Soilers with
the Old-Line Democrats. Here he took part in memorable
debates with Clay, Webster, Cass and Douglas. He earnestly
opposed the proposal of Jefferson Davis that there should
be non-intervention with slavery in the Territories, and
spoke against the Compromise measures, which included
the Fugitive Slave Law of 185o. He refused to support
Pierce for the Presidency, and persistently assailed the Repeal of the Missouri Compromise. He also advocated economy in national finances, a Pacific Railroad, the Homestead
Law and cheap postage. In 1855 Mr. Chase became the
Republican candidate for Governor of Ohio, and was elected,
and afterwards re-elected. He was a supporter of John C.
Fremont for the Presidency in 1856, and in 186o himself
received forty-nine votes in the nominating convention. Upon
the third ballot Mr. Lincoln was chosen through the support of Mr. Chase's friends. He was again sent to the
Senate of the United States, but upon the day after taking
his seat was appointed by President Lincoln Secretary of
the Treasury. Summoned at a moment of alarming danger
and perplexity, he devoted the energies of a comprehen
1 5 Howard, 215 (1847).
ï~~SALMON P. CHASE.
393
sive and creative mind to the administration of the national finances, when immediate decision was indispensable,
and delay or debate would have been fatal. The systems of
the past were inadequate to the enormous and unexpected
strain put upon them. He had to devise new ones, and he
seized, wielded and shaped the available wealth of the nation
in support of military and naval movements vaster than any
known to history. The promptness and vigor with which
his strong, sagacious and practical intellect invented and executed measures amid the rapid whirl of swiftly succeeding
events, and the untiring and unselfish devotion to duty, which
failed to exhaust his magnificent energies, will command the
admiration of centuries. As a financier, he stands beside
Robert Morris and Alexander Hamilton.
A somewhat persistent lack of harmony in feeling and
opinion between the President and the Secretary as to the appointment of a subordinate officer induced Mr. Chase to resign
his portfolio, yet shortly afterwards President Lincoln testified
the highest regard for his abilities by appointing him Chief
Justice of the United States. In the words of Mr. Justice
Clifford, "From the first moment he drew the judicial robes
around him he viewed all questions submitted to him as a
judge in the calm atmosphere of the Bench, and with the
deliberate consideration of one who feels that he is determining
issues for the remote and unknown future of a great people."
Mr. Evarts has pointed out that his mental and moral
constitution fitted him most conspicuously for judicial service;
and, after stating that the Bar had neither unkindly nor unnaturally doubted whether the Chief Justice were competent
to handle the diversified subjects and the manifold complexities which were involved in the cases before him, asserts that
in all the transcendent functions of the tribunal, the pre
ï~~394 THE SUPREME COURT OF THE UNITED STATES.
paration and the adequacy of the Chief Justice were unquestioned.
Mr. Chase presided over the Impeachment of President
Johnson before the Senate, and discharged the duties of that
novel and exalted position in a spirit of judicial impartiality.
Although his conduct was a disappointment to many bitter
partisans, who visited upon him the most indiscriminating
censure, yet "the charge against him," said Mr. Evarts, "if
it had any shape or substance, came only to this: that he
brought into the Senate, in his judicial robes, no concealed
weapons of party warfare, and that he did not wrest from the
Bible, on which he took and administered the judicial oath,
the commandment for its observance."
The most notable cases in which he delivered the opinion
of the Court will be noticed in the following pages; but it is
proper to dwell upon the extraordinary self-possession and
calmness of judgment which induced him, after the most serious reflection, to decide that some measures which he had
devised as Secretary of the Treasury for the salvation of the
country, were unconstitutional when brought to the final test
of the law. His action in this particular has led to animadversion; but, as Mr. Justice Clifford has said, "Men find it
easy to review others, but much more difficult to criticise and
review their own acts, and yet it is the very summit to which
the upright judge should always be striving. Judges sometimes surrender with reluctance a favorite opinion, even when
condemnation confronts it at every turn, and they find it well
nigh impossible to yield it at all when it happens to harmonize
with the popular voice, or is gilded with the rays of successful experiment.... Judges and jurists may dissent from his
final conclusion and hold, as a majority of the justices of this
Court do, that he was right as Secretary of the Treasury, but
ï~~t
'
ï~~,r.
ï~~NATHAN CLIFFORD.
395
every generous mind, it seems to me, should honor the candor
and self-control which inspired and induced such action."
In the year 1870 he was stricken with paralysis and from
that time until his death, upon the 7th of May, 1873, was
an invalid.
The senior associate at this time was Nathan Clifford,
who was born at Rumney, Grafton County, New Hampshire,
upon the 18th of August, 1803. His ancestors had immigrated in 1644, and settled at Hampton. They were farmers,
and shared all the hardships and privations common to the
pioneers of civilization in the New England States. The records show that many members of the family became conspicuous in the military service during the Colonial wars and the
Revolution. The great-grandfather of the Judge was Treasurer and Collector of the town of Rumney, and by his courage and enterprise contributed not a little to the success of
that settlement. His father was a man who enjoyed the respect and esteem of the community, of serious and impressive
deportment, somewhat stern, but possessed of a high degree
of intelligence. His mother was a woman of unusual energy
and strength of character, of great vigor and clearness of
mind. She lived to a great age, and witnessed the success of
her son in attaining the highest honor of his life. Nathan
was the only son. He received the rudiments of education in
the common schools of his native town, but he was an ambitious boy, and after becoming a pupil in Haverhill Academy, concluded his academical career at the Literary Institute
at New Hampton. At the age of eighteen he entered the
office of Josiah Quincy, a leading lawyer of Grafton County,
supporting himself in the meantime by teaching school, and
was admitted to the Bar in 1827. Removing to the western
part of Maine, he finally established himself in the town of
ï~~396 THE SUPREME COURT OF THE UNITED STATES.
Newfield, his removal having been suggested by Chief Justice
Shepley, then a leading lawyer in the city of Saco. He soon
found occupation. Many land titles were unsettled, and an
extensive lumber business was in operation, and as a result
of these conditions, litigation, settlements and contracts of
great variety called for the services of a well-trained, judicious
and able lawyer. At this time the bar of York County was
distinguished for its ability. Not long after his settlement
here, he was married to Hannah, the eldest daughter of Captain James Ayer, at that time a leading citizen of the town.
He was early led towards political life, and had always been
a Democrat. In 1830 he was elected to represent his district
in the State Legislature, serving until 1834, being Speaker
of the House for a part of the tinge. He was then appointed Attorney-General of the State, and after holding
the position for four years, was elected to Congress, in which
body he served until 1843. During the Presidential canvass
of 1840, he advocated the re-election of Van Buren, meeting
in public discussion many of the most distinguished Whig
orators, and winning for himself the reputation of being the
most eloquent champion of Democracy. In 1846 he was Attorney-General of the United States in the cabinet of President Polk. While adjusting the terms of the Treaty of Peace
between the United States and Mexico, he went to the latter
country as United States Commissioner with the full powers
of an Envoy Extraordinary and Minister Plenipotentiary, and
it was largely owing to his diplomatic skill and tact that the
treaty of Guadaloupe Hidalgo was arranged with the Mexican
government by which California became a part of the United
States. He was a warm advocate of the annexation of the
territory secured; he foresaw the importance of the western
country to our grandeur as a nation, the impulse it would
ï~~NATHAN CLIFFORD.
897
give to our development, and the necessity of a Western coast
line in establishing commerce with the empires of the East.
In 1849 he returned to the practice of his profession, removing to the City of Portland, which remained his place of residence until his death.
Here he met in professional conflict such men as John
Rand, an experienced and exact lawyer, John M. Adams, who
subsequently became his partner, Samuel Wells, afterwards a
Judge of the Supreme Court of the State, and William Pitt
Fessenden, the distinguished Senator of the United States.
In 1858 he was appointed by President Buchanan to the position of Associate Justice of the Supreme Court, his commission being dated the I2th of January of that year. At this
time all the District Judges in his circuit were old men.
The dockets were crowded with cases, many of them of long
standing, and an enormous amount of labor devolved upon
the new Judge, but he applied himself with great energy and
success. One who knew him well writes: "He was bitterly
opposed to anything like judicial legislation. He shrank from
strong or forcible constructions based on statutory phraseology
only. He sought simply for legislative intention. He saw in
the Court the administrator and expounder of the law and the
arbiter of each special litigation. He was content to explain
the law as it was, excepting when the question of Constitutionality arose. He considered the separate functions of the
judicial and legislative branches, as imparted by the Constitution, imposed clearly separate duties on each, which he was
not at liberty in the minutest degree to disregard. The wisdom or folly of a law enacted by Congress he was not to
direct or influence by judicial construction."
In 1877, as the oldest Associate Justice, he was selected
as President of the Electoral Commission, charged with the
ï~~398 THE SUPREME COURT OF THE UNITED STATES.
duty of deciding upon the character of the returns of the
Presidential election from the States of Louisiana, Florida,
South Carolina and Oregon. Although Mr. Clifford was a
firm believer in the fact of Mr. Tilden's election, he conducted
the proceedings with firm and unvarying impartiality. He
delivered an opinion upon the question of the Florida returns
in accordance with that of the minority, but declined to give
any judgments upon the votes of the other contested States.
Subsequent to the inauguration of Mr. Hayes he refused to
visit the White House.
In October, 188o, he was attacked with serious illness,
and owing to a complication of disorders it became necessary
to amputate one of his feet to prevent gangrene. From this
he never recovered, but died on the 25th of January, 1881.
His opinions form a large part of the forty volumes of
Reports, beginning with the latter volumes of Howard, and
continuing through Black, Wallace and Otto. His judgments
upon the Circuit are embodied in four volumes of Clifford's
Reports, edited by his son, William Henry Clifford, Esq.,
of. the Cumberland Bar. After the death of Chief Justice
Chase he was acting Chief Justice until the appointment of
Chief Justice Waite.
Noah H. Swayne, of Ohio, was appointed an Associate
Justice in place of John McLean, deceased, and was commissioned upon the 24th of January, 1862. He was born in
Culpepper County, Virginia, on the 7th of December, 1804,
and was a descendant of Francis Swayne, who had immigrated to this country in the days of William Penn, accompanied by his family, and settled near Philadelphia. Joshua
Swayne, the father of the Judge, who retained his membership in the Society of Friends, removed to the town of
Waterford, Virginia, where he gave his son a liberal educa
ï~~It
l'
7
' r
---
ï~~
ï~~NOGAH H. S WA YNE.
399
tion. The early studies of the lad were directed towards the
medical profession, and at one time he served as an apothecary's clerk in Alexandria. Through the death of his
teacher this plan was interrupted. Having lost his father
not long afterwards, and his mother being unable to provide
for his support while pursuing a collegiate course, he began
the study of the law in Warrenton, and was admitted to the
Bar in 1823. Two years later he removed to Ohio, opening
an office in Coshocton, where he became prosecuting attorney
of the county. He was then elected a member of the Ohio
Legislature as a Jeffersonian Democrat. In 1830 he was
appointed, by President Jackson, District Attorney of the
United States, and removed to Columbus. During his service
of ten years in that capacity, he declined the office of President Judge of the Court of Common Pleas. He served, however, as a Commissioner to manage the State debt, and as a
member of a Committee sent by the Governor to effect a settlement of the boundary lines between the States of Ohio
and Michigan, and in 184o became one of a committee appointed to inquire into the condition of the State Blind Asylum. Becoming interested in public charities, he ever afterwards took a leading part in organizing and visiting asylums
and institutions for the blind, the deaf and dumb, and lunatics. His views upon the question of slavery, as well as his
personal kindness of disposition, led him, as early as 1832,
to emancipate a number of slaves acquired by his marriage.
His practice in the meantime had become large and lucrative
through constant and unremitting attention to its requirements, and one of the most celebrated of his efforts was his
defence of William Rossane and others, in the Circuit Court
of the United States held at Columbus in 1853, charged with
burning the steamboat Martha Washington for the fraudulent
ï~~400 THE SUPREME COURT OF THE UNITED STATES.
purpose of obtaining the insurance. He also appeared as
counsel in fugitive slave cases, and joined the Republican
Party upon its formation. So prominent had he become
through his bold utterances upon public questions that, upon
the 14th of January, 1862, he was appointed by President
Lincoln one of the Associate Justices of the Supreme Court
at the most critical hour in the history of that tribunal.
His views, as expressed in his opinions upon Constitutional
questions, were in favor of a firm and uncompromising support of nationality. He struck a high note and maintained
it. In the original Legal Tender case he dissented from
the opinion, which denied full effect to the Act of Congress. He dealt with a vast number of subjects, and became
a leader in contending for the existence of a general commercial jurisprudence, which the Supreme Court of the
United States was at liberty to recognize and develop in
cases involving no Federal question, in opposition to the
decisions of the State tribunals. His views were in direct
opposition to those of his distinguished colleague, Mr. Justice
Miller, and it is through his opinions, in Ge/lpcke v. The City
of Dubuque1 and similar cases, that the doctrine of Swzft v.
Tyson obtained a firm foothold in the Court. In his last
opinion he considered fully the important subject of the income tax imposed by the United States, and defined clearly
and authoritatively the meaning of the phrase "direct taxes,"
as used in the Constitution.2
In 1863 he received the degree of LL.D. from Dartmouth
and Marietta Colleges, and in 1865 from Yale. A judge of
unusual capacity, familiar with adjudged cases, and with settled
habits of labor and research, of genial and benevolent courtesy,
1I Wallace, 175 (1863).
2 Springer v. The United States, o102 U. S., 586 (188o).
ï~~
ï~~,A >,,.
4
ï~~SAMUEL F. MILLER.
401
singularly amiable in disposition, and patient even with the
dullest, he won not only the cordial esteem, but the warmest
affections of the bar.
The second of the appointees of President Lincoln was
Samuel Freeman Miller, who was commissioned upon the 16th
of July, 1862. Two vacancies existed at the time of his appointment, one caused by the death of Mr. Justice Daniel, and the
other by the resignation of Mr. Justice Campbell. Mr. Miller
was not named especially for either. He was born of pioneer
stock in Richmond, Kentucky, upon the 5th of April, 1816,
amid humble surroundings. His father had removed from the
town of Reading, in Pennsylvania, some years before, and,
shortly after his arrival, purchased a farm upon which the
early years of his distinguished son were spent. Like his associate, Mr. Justice Swayne, he found employment in a drugstore and turned his attention to the study of medicine, and
upon reaching manhood spent two years in the Medical Department of the Transylvania University, from which he graduated in 1838. For nearly ten years he practiced medicine in
Knox County, Kentucky, but, although meeting with success,
determined to study law, and was duly admitted to the bar in
1847 at the age of thirty. He strongly hated African slavery
and did much to promote the cause of freedom, although he
took no active part in politics until after his removal to Iowa
in 1850. Here he became the leader of the Republican Party.
He was offered and declined numerous State and local offices,
preferring to devote himself to his profession in which he
took high rank. At a time when the Supreme Court was to
be strengthened, if not re-organized, his name was presented
to President Lincoln by the members of the bar and the politicians of both parties, sustained by members of Congress, and
the singular unanimity of his support, as well as his reputa26
ï~~402 THE SUPREME COURT OF THE UNITED STATES.
tion for ability of the highest order made such an impression
as to win success. "The finding of such a judge by the
President was only less fortunate than the finding of such a
President by the country."
The position which he early acquired and ever maintained
was that of a truly great jurist; logical, learned, wise, robust,
rugged, simple and honest. It has been estimated that he
wrote more opinions of the Court than any Judge living or
dead, and more opinions in construction of the Constitution
than any Judge who ever sat in the Supreme Court. Those
opinions, more than seven hundred in number, including dissents, run through seventy volumes, and are marked by
"strength of diction, keen sense of justice and undoubting
firmness of conclusion."
The most important of them, perhaps the most important
decision of the Court in its far-reaching effects since the Rebellion, was in the famous Slaughter House Cases, which has
never been overruled or questioned since its delivery, as he
himself was wont to assert in tones of conscious pride, although at the time most powerfully dissented from by the
most eminent of his brethren.
As a Constitutional lawyer, a careful student of his career
has pronounced him to be the most eminent authority since
the days of Marshall. He had great capacity to seize upon
the vital points of controversy and an instinctive command of
general principles. A pronounced Federalist in his views of
the scope of the powers of the General Government, he so tempered these leanings with a broad conservatism as to bring
the Court to the preservation of an even balance between
National supremacy and State autonomy. "The just and
equal observance of the rights of the States and of the General Government, as defined by the present Constitution,"
ï~~
ï~~..AAl
ï~~DAVID DAVIS.
403
said he, "is as necessary to the permanent prosperity of our
country and to its existence for another century as it has been
for the one whose close we are now celebrating." At one
time he meditated the preparation of a History of the Supreme Court and collected material to that end, but never put
it into shape, but gave warm encouragement and hearty assistance to the present writer. His judicial style is clear,
luminous, exact, and impressive, "like his tread, massive but
vigorous."
Mr. Justice Miller was warmly interested in true professional education, and from time to time delivered addresses in
various parts of the country, the most notable of which are
entitled "The Constitution and the Supreme Court of the
United States of America," delivered upon the 29th day of
June, 1887, before the Alumni of the Law Department of
Michigan, and the Memorial Oration, delivered at the Celebration of the One Hundredth Anniversary of the Framing and
Promulgation of the Constitution of the United States, in Independence Square, upon the 17th of September, 1887, in the
city of Philadelphia.
David Davis, of Illinois, was commissioned as an Associate
Justice to fill one of the existing vacancies in the recess, October 17th, 1862, and re-commissioned upon confirmation on
the 8th of December of the same year. He was a native of
Cecil County, Maryland, where he was born upon the 9th of
March, 1815. His ancestors were Welsh. He was a graduate
of Kenyon College, Ohio, in 1832, and went to Massachusetts
for the purpose of reading law under the direction of Judge
Bishop, in Lenox, subsequently attending a course of lectures
at the Yale Law School. In 1835 he removed to Illinois, and
was admitted to the bar, finally settling in Bloomington.
There he met Abraham Lincoln, and a lifelong attachment
ï~~404 THE SUPREME COURT OF THE UNITED STATES.
was established between them. He was elected to the State
Legislature in 1844, and was a member of the Convention that
framed the State Constitution in x847. In the following year
he was chosen Judge of the Eighth Judicial Circuit of the
State. He was twice re-elected to this post, and was discharging its duties at the time of his selection by Mr. Lincoln for
the Supreme Court of the United States. His interest in
politics had been ardent, and he had served as a delegate at
large to the Chicago Convention which nominated Lincoln for
the Presidency in 186o, and personally accompanied him on
his journey to Washington. After the assassination of the
President, Mr. Davis acted as administrator of his estate. His
views upon Federal questions were pronounced, and he always
upheld the highest exercise of Federal power, although in
the celebrated Milligan case,' in sustaining the right of the
prisoner to trial by jury, he gave offence to some partisans
of the day. His opinion in this case is upon a right of
such importance, and is expressed in terms so exalted, as "to
be clothed with the heritage of immortality." He was one of
the minority in the early Legal Tender cases, and contended
earnestly in support of the Constitutionality of the power
exercised by Congress in making Treasury notes a legal
tender in payment of debts. His judicial style is bold and
vigorous, but betrays a lack of polish and harmony, and at
times his opinions received the revisionary touches of the
more scholarly reporters.
In February of 1872 a National Convention of the Labor
Reform Party nominated him as its candidate for the Presidency upon a platform that declared in favor of a national
currency "based on the faith and resources of the nation and
14 Wallace, o107 (1866).
ï~~DAVID DAVIS.
405
interchangeable with the 3.65 per cent. bonds of the Government," an eight-hour law, and the payment of the national
debt "without mortgaging the property of the people to enrich capitalists." In answer to the letter informing him of
his nomination, he wrote: " Be pleased to thank the Convention for the honor they have conferred upon me. The Chief
Magistracy of the Republic should neither be sought nor declined by any American." His name was also used before
the Liberal Republican Convention at Cincinnati during the
same year, and ninety-two and a half votes were cast in his
favor upon the first ballot. After the regular nominations
had been made, he determined to retire from the contest, and
so announced in his final answer to the Labor Reformers.
His restlessness upon the Bench had become somewhat marked,
and his habit-far from judicial-of freely expressing his
views on public questions led to much uneasiness in relation
to the probability of his becoming a member of the Electoral
Commission. He was counted as hostile to the election of
Mr. Hayes, and it was determined, if possible, to exclude him.
The exigency did not arise, however, for he resigned his seat
in the Supreme Court to take his place in the Senate of the
United States, upon the 4th of March, 1877, to which he had
been elected by the votes of Independents and Democrats to
succeed John A. Logan. In the Senate he was rated as an
Independent, or as the representative of a third party whose
principles were unannounced, and acted most frequently with
the Democrats. After the death of President Garfield in 1881
he was chosen President of the Senate. He resigned his Senatorial office in 1883, and retired to Bloomington, where he
quietly resided until his death, which occurred on the 26th of
June, 1886. He received the degree of LL.D. from Williams
and Beloit Colleges, and the Wesleyan University.
ï~~406 THE SUPREME COURT OF THE UNITED STA TES.
The appointment of an additional Associate Justice was
authorized by the Act of March 3rd, 1863, and Mr. Lincoln
selected for the place thus created Stephen J. Field, of California, who was duly commissioned upon the loth of March
of the same year.
The new Justice, who is now the senior Associate, belongs to a remarkable family. The name is an ancient and
honorable one in England, and can be traced back more than
eight hundred years to Hubertus De la Feld, who came in
the train of the Conqueror. His grandfathers served as
officers in the War of the Revolution, and were descended
from a Puritan stock, among the oldest in New England.
With no exceptional advantages of early training, the living
brothers of the Justice, as well as himself, have won a
reputation that is world-wide. David Dudley Field, in the
effort to reform systems of procedure and promote codification; Cyrus W. Field, in accomplishing that astounding
triumph of science and commerce, the submarine telegraph,
by which all parts of the world are now united; Henry
Martyn Field, in wielding a powerful influence as the
editor of one of the leading religious papers of the country,
have made the name honored wherever it is known, while
the talents of the sister of this extraordinary group of
brothers are now represented upon the bench of the Supreme
Court by her son, Mr. Justice David J. Brewer, who sits
beside his uncle in the highest tribunal of the country.
Stephen Johnson Field was born in Haddam, Connecticut,
on the 4th of November, 1816. He was the sixth son in a
family of nine children. His father, the Rev. David D. Field,
D.D., was a Congregational minister, who removed, in 1819,
to Stockbridge, Massachusetts, where the childhood and early
youth of the future jurist were happily passed. At the age
ï~~J
ï~~a
ï~~STEPHEN J. FIELD.
407
of thirteen, he accompanied his elder sister, the wife of the
Rev. Josiah Brewer, a missionary, to Smyrna, for the purpose
of studying Oriental languages, and thus qualifying himself for
a professorship in an American University. He remained in
the Levant two and a half years, visiting many islands of
the Grecian Archipelago and famous cities of Asia Minor,
and passing one winter in Athens, where he acquired a competent knowledge of modern Greek, and also of French, Italian and Turkish. Coming in contact with the members of
many religions, Greek, Armenian and Mahometan, he relaxed
the narrow creed of the Puritan, and became broadly tolerant.
Returning to the United States in 1832, he entered Williams
College, and was graduated in 1837 with the highest honors
of his class. He then studied law in the office of his brother, David Dudley Field, and was admitted to the Bar in
1841. During a portion of this time he gave instruction to
classes at the Albany Female Academy, and pursued his
studies in the office of John Van Buren, then Attorney-General of the State. Upon his admission to the Bar, he entered
into partnership with his brother, and the relation continued
until 1848, when he severed it to travel extensively in
Europe. Shortly after his return in the following year, he
went to California, and arrived in San Francisco on the 28th
of December, 1849, with ten dollars in his pocket. In the
following January he established himself in the city of
Marysville, became the first Alcalde of the town, and on the
adoption of American institutions, a member of the Legislature. During the canvass, which he was obliged to conduct in person, he saw much of rough border and mining
life, encountered some strange experiences, and succeeded in
saving from a lynch jury a man charged with stealing gold
dust. As a legislator, he accomplished during a single term
ï~~408 THE SUPREME COURT OF THE UNITED STATES.
results which have proved lasting in their effect upon the
interests of California and of all the States since formed in
the extreme West. He gave to the usages, customs and voluntary regulations of the miners of gold the force of law,
and thus laid the foundation for the mining system of the
State. He planned a bill reorganizing the judiciary, and
established codes of civil and criminal procedure. He also
framed an exemption law for the benefit of poor debtors,
which is remarkable for its comprehensive and liberal provisions.
Returning to the practice of his profession, which had
been destroyed by a "judicial ruffian," he became one of the
foremost lawyers of the State, and in the fall of 1857 was
elected a Justice of the Supreme Court of the State. Before
he could enter upon his term, a vacancy occurred through
the death of one of the Justices, and he was appointed by
the Governor to fill the unexpired term, and took his seat in
October, 1857. Upon the resignation of Chief Justice Terry,
he became, in 1859, Chief Justice of the State, and from this
office was transferred to the Supreme Court of the United
States upon the unanimous recommendation of the Senators
and Congressmen of the States composing the new circuit,
irrespective of politics. In the State Court he had proved
himself to be, in the language of his associate, Judge Baldwin, the ablest jurist who ever presided in the Courts of
California. He gave tone, consistency and freedom to her
judicature, and laid broad and deep the foundations of her
civil and criminal law. The land titles of the State received
from his hands their permanent protection. Professor Pomeroy, in a careful study of Mr. Field's career, has stated his
judicial qualities to be marked legal learning, the capacity,
in an extraordinary degree, to acquire new knowledge and
ï~~STEPHEN J. FIELD.
409
skill to appropriate and to assimilate the materials thus obtained with the State or national law; devotion to principle;
power of discovering, comprehending and applying principles
to a new state of facts; creative power; ability to develop,
enlarge and improve the law by means of the "legislative
functions belonging to all superior Courts," and intellectual
and moral fearlessness.
It was through a display of the latter trait in a decision
as to the validity of a city ordinance requiring the queues of
Chinese prisoners to be cut off, that he lost the Democratic
support of California for the Presidency in 188o. This ordinance he held to be unconstitutional in that it was hostile
and discriminating legislation against a class, and was inhibited by the spirit of the Fourteenth Amendment.
In his work in the Supreme Court of the United States
he has kept steadily in view two principles-the preservation
from every interference or invasion by each other of all the
powers and functions allotted to the National Government and
the State governments; and the perfect security and protection of private rights from all encroachment either by the
United States or by the individual States.
In 1873 Mr. Justice Field was one of three Commissioners appointed by the Governor of California, to examine the
codes of the State, and prepare such amendments as seemed
necessary for the consideration of the Legislature. In 1877
he served as a member of the Electoral Conmmission, and
acted steadily with the minority, expressing his opinions
without qualification. In the summer of 1881 he re-visited
Europe, extending his journey to the East as far as Athens
and Smyrna, where he had spent several years of boyhood.
His life has been twice attempted. In 1865 he received
through the mail a package containing a deadly machine, but
ï~~410 THE SUPREME COURT OF THE UNITED STATES.
fortunately was prevented from opening it. Upon the inside
was found pasted against the lid a copy of his decision in the
Pueblo case, by which a large number of speculators and adventurers, who had occupied land in San Francisco as squatters, had been dispossessed. Quite recently his life was
menaced by Judge Terry, a man notorious for violence, yet
formerly his associate in the Supreme Court of California,
who incensed at a decision adverse to his personal interests,
assisted by his wife, attempted insult and assassination.
Some months afterwards the Deputy United States Marshal,
who was specially deputed as an attendant to protect the
Justice in the performance of his duties, shot the man
Terry in a railway eating-house as he was about to commit a deadly assault upon the Justice, and was seized upon a
charge of murder by the Sheriff of San Joaquin County, in
the State of California. The United States Circuit Court
discharged Neagle from the custody of the Sheriff, and the
matter came upon appeal before the Supreme Court of the
United States. Under these trying circumstances Mr. Field
conducted himself with the utmost courage and firmness.
Mr. Field took the oath of office on the 2oth of May,
1863,-his father's birthday thinking, with a touch of sentiment that is one of the graces of his character, that his aged
parent would be gratified to learn that on the day on which
he completed his eighty-second year his son had become a
Justice of the Supreme Court of the United States.
A variety of interesting questions came before the Court
thus constituted, growing directly out of a condition of war.
The first of these is Ex parte Vallandzgham,1 which was a
petition for a certiorari, to be directed to the Judge Advocate
1 I Wallace, 243 (1863).
ï~~WHA 4 T CONSTITUTES A BLOCKADE.
411
General of the Army of the United States, to send up to the
Supreme Court for review the proceedings of a Military Commission. Clement L. Vallandigham, a noted member of
Congress, had been tried and sentenced to imprisonment for
stating, in a public speech in a town in Ohio, that the war
was wicked, cruel and unnecessary, waged for the freedom of
the blacks, and not for the preservation of the Union, and
for charging that the United States Government was about to
appoint military marshals to deprive the people of their liberties, and for inciting the people to resistance. The prisoner
had denied the jurisdiction of the Military Commission, and
had refused to plead upon arraignment. The plea of "Not
Guilty" was entered for him by authority of the Commission,
and the trial proceeded, the prisoner appearing in person, and
cross-examining the witnesses. It was held in an exhaustive
opinion by Mr. Justice Wayne that the appellate power of the
Supreme Court did not extend to a review by certiorari of the
proceedings of a Military Commission ordered by a General
officer of the United States Army in command of a Military
Department.
Several interesting questions of prize also arose, and
the first opinion delivered by Chief Justice Chase was in
the case of the Circassian,' in which he had occasion to consider what constituted a blockade, and how it could be made
effectual, and whether the blockade of the Louisiana district
was terminated by the occupation of the city of New Orleans
by Federal forces on the 4th of May, 1862. It was held in
the negative, the city itself being hostile, the opposing enemy
being still in the neighborhood, the occupation being recent
and limited, and subject to the vicissitudes of war. The
1 2 Wallace, 135 (1864).
ï~~412 THE SUPREME COURT OF THE UNITED STATES.
Chief Justice laid it down as a rule of International law that
a vessel sailing from a neutral port, with intent to violate a
blockade, is liable to capture and condemnation, and is prize
from the time of sailing, and that the evidence of this intent
may be gathered from papers, letters, and the acts and words
of the owners or hirers of the vessel, the shippers of the
cargo and their agent, and especially from the spoliation of
papers in apprehension of capture. Nor was the intent to
violate the blockade disproved by evidence of a purpose to
call at another port, not reached at the time of capture,
with an ulterior destination to the blockaded port. In the
cases of the Bermuda,' and the Hart,2 the Chief Justice
enters upon an interesting discussion of the rights of neutrals and belligerents, but held that as the cargoes were consigned to enemies, and the greater part of them consisted of
goods which were contraband, they must share the fate of
the vessels, which had been condemned because of suspicious
acts, such as the spoliation of papers.
Another aspect of the same question arose in the
case of the Venice,3 in which protection under the proclamation of President Lincoln was extended to vessels and
their cargoes belonging to citizens of New Orleans or neutrals residing there, and not affected by any attempts to
run the blockade, or by any act of hostility against the United
States.
In the case of the Bazigorry,4 duly affirmed in the cases
of the Josephine,) and the Admiral,'6 it was held that the
blockade of that part of.the coast of Louisiana which had no
direct connection with the port of New Orleans by navigation,
'3 Wallace, 514 (1865). 2Ibid., 559 (1865).
32 Wallace, 258 (1864). 42 Wallace, 474 (1864).
53 Wallace, 83 (1865). 63 Wallace, 603 (1865).
ï~~THE SLA VE TRADE.
418
was not terminated by the proclamation of May 12, 1862, discontinuing the blockade of that port. In the case of The
Slavers,' four libels of information and forfeiture were filed,
alleging that the vessels seized had been equipped, loaded and
fitted out at New York in the summer of 186o, for the purpose of engaging in the Slave Trade, in violation of the Acts
of Congress of March 22, 1794, and April 22, 1818. Although the evidence was conflicting, yet it was held that a
professed sale at an excessive price, a false crew-list, an equipment suitable to a slave voyage, a cargo not fully on the
manifest, suspicious conduct on the part of the crew, and the
appearance and subsequent disappearance of a person with a
Spanish name as claimant, were circumstances, which, when
unexplained, justified forfeiture.
In the case of Mrs. Alexander's Cotton,' the Chief Justice
held that cotton in the Southern rebel districts, constituting
as it did, the chief reliance of the rebels as the means for
purchasing munitions of war, was a proper subject of capture,
upon general principles of public law relating to war, even
though such cotton was private property, belonging to one
friendly to the Union, inasmuch as the personal disposition
of the individual inhabitants of hostile territory, as distinguished from that of the enemy people generally, could not
be taken into account, unless it could be shown that the relation of the district towards the United States had been changed
by the action of the Government itself.3
Perhaps the most interesting case was that of the iron12 Wallace, 350 (1864).
2 2 Wallace, 404 (1865).
3 The same principle was invoked and applied in the cases of the Gray Jacket,
5 Wallace, 342 (1866); the Peterhof 5 Wallace, 28 (1866); United States v. Weed,
5 Wallace, 62 (1866); and the Sea Lion, 5 Wallace, 63o (1866).
ï~~414 THE SUPREME COURT OF THE UNITED STATES.
clad Atlanta.' Originally a British steamer, known as the
Fingall, she had, early in the war, run the blockade of Savannah, and been converted into an iron-clad at an expense
to the Confederate Government exceeding one million dollars.
She carried a powerful ram, and had attached to her bow, and
carried under water a torpedo charged with about fifty pounds
of powder. Much was expected of her; it was predicted that
she would raise the blockade of every Southern port and enter
in triumph the sea-ports of the North, and as she steamed
from Warsaw Sound to engage with two monitors belonging to
the United States Government, the Weehawken, commanded
by Captain Rogers, and the Nahant, commanded by Captain
Downs, she was accompanied by several steamers thronged with
passengers, eager spectators of what, it was anticipated, would
prove an easy victory. The monitors slipped their cables and
steamed towards the ocean for the purpose of gaining time to
prepare for action. The Atlanta followed and opened fire upon
the Nahant, whose guns were silent. The Weekawken first
rounded and steamed towards the Atlanta, until within three
hundred yards, when she slowed down and discharged her
celebrated gun. The first shot carried a fifteen-inch ball, containing within a hollow sphere thirty-five pounds of powder
and weighing four hundred pounds. The effect was to knock
a hole in the casemate of the rebel ram, scattering splinters
of wood and iron, wounding many men and prostrating as
many as forty persons. The effect of this single shot was to
demoralize the crew. A second shot struck the top of the
pilot-house, crushing and driving down the bars, wounding
both pilots and stunning the helmsman. The Atlanta immediately hauled down her colors and ran up a small white flag
13 Wallace, 425 (1865).
ï~~OPPOSITION TO RECONSTRUCTION ACTS.
415
as token of surrender. The Nahant in the mean time had
steamed into position with the intent of discharging a broadside. A claim was made in behalf of the Nahant as against
the exclusive claim of the Weehawken, that as the combined
force of the two monitors was superior to that of the Atlanta,
both were to be regarded as capturing vessels, and that the
crews of both monitors had a right to share in the prize
money. This contention was sustained by Mr. Justice Field,
although the argument of Mr. Reverdy Johnson in behalf of
the Weehawken was not replied to by the Attorney-General of
the United States, upon the principle that it was fair to assume that the advance of the Nahant upon the Atlanta at full
speed with the intention, and doubtless with the ability to inflict injuries similar to those already inflicted by the Weehawken, might have hastened the surrender, and that it could
hardly be supposed that the approach of the second monitor
did not enter into the consideration of the captain and officers
of the Atlanta; the mere fact that the only damage done and
that the only shots fired were by the Weehawken was not
decisive of the question. The Atlanta had descended the
Sound to attack both, and had governed herself in reference
to their combined action, and it was not reasonable to suppose
that her course would have been the one pursued had she had
the Weehawken only to encounter.
Another interesting class of cases arose from the efforts
of the late Confederate States to restrain the enforcement of
the Reconstruction Acts of Congress. The first was that of
The State of Mississo/ i v. President Johnson,' in which the
State sought to restrain, by injunction, the President of the
United States from carrying into effect an Act of Congress
14 Wallace, 475 (1866).
ï~~416 THE SUPREME COURT OF THE UNITED STATES.
which was alleged to be unconstitutional. An objection was
raised, by the Attorney-General of the United States, upon a
motion for leave to file a bill, that no such bill should be
allowed to be filed in this Court, and the question of jurisdiction was elaborately argued. The Chief Justice, in delivering the opinion, drew the distinction between ministerial and
executive duties, and pointed out that the cardinal vice in
the argument of counsel for the State of Mississippi consisted
of the assumption that the President, in the execution of the
Reconstruction Acts, was required to perform a mere ministerial duty. It was shown that an attempt on the part of
the Judicial department of the Government to interfere with
the performance of Executive duties would be an absurd and
excessive extravagance, and that if the President refused obedience it was needless to declare that the Court was without
power to enforce its process; and if, on the other hand, the
President complied with the order of the Court, and refused
to execute the Acts of Congress, it was equally clear that a
collision would occur between the Executive and Legislative
departments of the Government, which would in all probability lead to the Impeachment of the President for such
refusal, and that, in such a case, if the Court interfered in
behalf of the President, thus endangered by compliance with
its mandate, and sought to restrain by injunction the Senate
from sitting as a Court of Impeachment, the strange spectacle would be offered to the public of an attempt by the
Supreme Court to arrest Impeachment proceedings. Upon
such grounds the motion was denied.
The question was raised a second time, in the case of
The Stale of Georgia v. Stanton,1 where a bill was filed by
16 Wallace, 50 (1867).
ï~~EX PAR TE MILLIGAN.
417
the plaintiff State against the Secretary of War, the Secretary
of State, and the General of the Army, to restrain them from
carrying into execution laws which, it was alleged, would annul' and totally abolish the existing State government of
Georgia. In an opinion delivered by Mr. Justice Nelson it was
shown that the question involved was purely political, and that
the Court had no jurisdiction, the decision of Marshall in The -
Cherokee Nation v. Georgia being relied upon as conclusive
authority against the exercise of any right or power on the
part of the Court to interfere with political questions, for, as
was said, "the rights for the protection of which our authority is invoked, are the rights of sovereignty, of political jurisdiction, of government, of corporate existence as a State, with
all its Constitutional powers and privileges. No case of private rights infringed, or in danger of actual or threatened infringement, is presented by the bill in a judicial form for the
judgment of the Court." The moralist might instance this as
a decree of retributive justice, pronounced against the State
of Georgia for her defiance of Marshall's judgment in the
case of Worcester v. Georgia.
In the case of Ex parte Milligan a question arose somewhat similar to that disposed of in Ex parte Vallandigham,
which, although criticised at the time as a departure from
doctrines thought to be essential to the preservation of the
Union, has now come to be regarded as one of the leading decisions in favor of personal liberty, and in support of the
rights of the citizen, to be found in our national jurisprudence. It was held upon an application for a writ of habeas
corpus that a Military Commission had no jurisdiction to try
and sentence one not a resident of one of the rebellious States
14 Wallace, 2 (1866).
27
ï~~418 THE SUPREME COURT OF THE UNITED STATES.
nor a prisoner of war, and that a citizen of a State not in
open rebellion, who was never in the military or naval service, but who was, while at home, arrested by the military
power of the United States, imprisoned, and tried, and sentenced to be hanged by a Military Commission for words
spoken in a public speech, was not subject to martial law, but
was entitled, under the Constitution, to the right of trial by
jury. It was further held that martial rule can never exist
where the courts are open, and in the proper and unobstructed
exercise of their jurisdiction, and that though the suspension
of the privilege of the writ of habeas corpus had been pleaded,
yet that did not suspend the writ itself; that the writ issued
as a matter of course, and upon the return made, the court
would decide whether the party applying was to be denied the
right of proceeding further.
In the greatly celebrated case of The State of Texas v.
White1 the nature of a State under our Constitution, and the
effect of an attempted secession, were exhaustively considered.
The suit was an appeal to the original jurisdiction of the
Court by the State of Texas claiming certain bonds of the
United States as her property, and asking for an injunction
to restrain the defendants from receiving payment from the
National Government, and to compel the surrender of the
bonds to the State. To this it was replied that Texas had
withdrawn from the Union, and had not been rehabilitated.
The magnitude and importance of the question excited the
greatest interest, and the opinion of the Chief Justice is a
most elaborate review of the nature of our government.
"The Union of the States," said he, "never was a purely artificial
and arbitrary relation. It began among the colonies, and grew out of
17 Wallace, 700 (r868).
ï~~THE STA TES INDESTRUCTIBLE.
419
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 character and sanction
from the Articles of Confederation. By these the Union was solemnly
declared 'to be perpetual' and when these Articles were found to be
inadequate to the exigencies of the country, the Constitution was ordained 'to form a more perfect Union.' It is difficult to convey the idea
of indissoluble union more clearly than by these words. What can be
indissoluble if a perpetual union made more perfect is not? But the per;
petuity 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, freedom, and independence, and every power, jurisdiction, and
right not expressly delegated to the United States. Under the Constitution, though the powers of the State 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, and we have already had
occasion to remark at this term that the people of each State compose a
State having its own government and endowed with all the functions
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."
From this judgment Mr. Justice Grier dissented on the
ground that the case was to be decided upon the basis of political facts and not of legal fictions; that the Court was bound
to know and notice the public history of the nation, and that
with a due regard for the truth of history during the past
eight years, he could not discover that the State of Texas
ï~~420 THE SUPREME COURT OF THE UNITED STATES.
remained as one of the United States. Adopting the definition of a State given by Chief Justice Marshall in Hepburn
v. Ellzey,' he contended that as Texas was not represented
upon the floor of Congress by members chosen by the people
of that State, nor by Senators to represent her as a State in
the Senate of the United States, and as she did not participate in the late election of President, but was then held and
governed as a mere province, by military forces, that she did
not fulfill the requirements of the definition.
In this dissent he was joined by Justices Swayne and
Miller, all of them being of the opinion that the Court
was bound by the acts of the Legislative department of the
Government in relation to the State. The decree, however,
as entered, gave to the State of Texas the relief sought by
her bill.
Several important cases, decided in 1870, presented a
variety of questions growing out of the Rebellion.
In the Grapeshotl' the power of the President to establish
provisional courts, in portions of insurgent territory occupied
by the National forces, for the consideration of causes arising
under the laws of the State and United States, was sustained.
At the close of the war all cases pending in these courts were
transferred to the United States Circuit Court for the proper
district, with the same effect as if originally brought there.
In United States v. Anderson,' the 2oth of August, 1866,
was fixed as the time when the Rebellion was suppressed as
respects the rights intended to be secured by the Captured
and Abandoned Property Act.
In United States v. Keekler,4 it was held that a payment
made by a United States officer, of certain public moneys in
1 2 Cranch, 452, (1805). 29 Wallace, I29 (1869).
39 Wallace, 56 (1869). *9 Wallace, 83 (1869).
ï~~WAR CASES.
421
his hands, to the Confederate Government, under a so-called
act of sequestration, did not discharge his bond. Mr. Justice
Miller held that it could not be admitted for a moment that
the statute of the Confederate States, or the order of its Postmaster-General, could have the legal effect of making the
payment valid; that the whole Confederate power must be
regarded as a usurpation by unlawful authority, incapable of
divesting, by an act of its Congress, or an order of one of
its departments, any right or property of the United States.
In Hickman v. Jones1 it was held that the Rebellion was
only an insurrection, that there was no rebel Government de
facto in such a sense as to give any legal efficacy to its
acts; that although for the sake of humanity certain belligerent rights were conceded to the insurgents in arms, yet
such partial recognition did not extend to the pretended
Government of the Confederacy. Therefore an act of the
Confederate Congress creating a court was void; the court
was a nullity, and could exercise no rightful jurisdiction,
and could give no protection to those who assumed to be its
officers.
In United States v. Lane2 a contract for Confederate cotton was held to be illegal, and a vessel and cargo engaged
in illegal traffic with the enemy were said to be properly
seized.
In Thorington v. Smith3 it was held that a contract for
the payment of Confederate notes made during the Rebellion
between parties residing within the so-called Confederate
States could be enforced in the Courts of the United States,
and that, under certain limitations, obligations assumed by a
19 Wallace, 197 (1869).
28 Wallace, 185 (1868). See also Morris's Cotton, Ibid., 507 (1869).
s Ibid., I (1868).
ï~~422 THE SUPREME COURT OF THE UNITED STATES.
Government de facto, in behalf of the country or otherwise,
will in general be respected by the Government de jure when
restored; that Confederate notes must be regarded as a currency imposed on the community by irresistible force, and
that a party stipulating for payment in Confederate dollars
could recover their actual value at the time and place of the
contract in lawful money of the United States.
In the case of the Protector1 it was held that the time
during which the war lasted was not to be counted in reckoning the time allowed for an appeal from an Alabama
Court.
In Boyce v. Tabb2 it was held that it was not a legal
defence to a suit on a promissory note executed in Louisiana
in 1861, that the note was given for the price of slaves sold
to the maker; that contracts relating to slaves, valid at the
time they were made, were not impaired by the Thirteenth
Amendment to the Constitution. The opinion was delivered
by Mr. Justice Davis, the case being in direct line with the
previous decisions of White v. Hart3 and Osborn v. Nicholson.4
In close connection with the cases arising out of the
war are those which are known as the "Test Oath Cases,"
in which the meaning of the Constitutional clause prohibiting
bills of attainder was fully settled and defined.' In the first
of these the Constitution of the State of Missouri had imposed a test oath, known as the "Oath of Loyalty," upon all
persons who should assume the duties of any office to which
they might be appointed otherwise than by a vote of the peo1 9 Wallace, 687 (1869). 18 Wallace, 546 (1873).
s 13 Wallace, 647 (1871). 4 Ibid., 655 (1871).
5 Cummings v. Missouri, 4 Wallace, 277 (1866). Ex parne. Garland, Ibid. 333
(1866).
ï~~TEST OATH CASES.
423
ple, and it was expressly provided that no person should be
competent as a bishop, priest, deacon, minister, elder or other
clergyman of any religious persuasion, sect or denomination,
to preach, teach, or solemnize marriages unless he had first
taken the oath. Cummings, who was a Catholic priest, had
refused to be sworn, and had been indicted, tried and convicted, and sentenced to pay a fine. On appeal to the Supreme Court of the State, the judgment was affirmed, an4"
the case was then brought to the Supreme Court of the
United States. It was argued with supreme ability by Montgomery Blair, David Dudley Field and Reverdy Johnson for
Mr. Cummings, and by Mr. Strong and Senator Henderson,
of Missouri, for the State. The opinion was delivered by Mr.
Justice Field, in which he held that the test oath prescribed
was a violation of that provision of the Constitution of the
United States which provided that no State shall pass any
bill of attainder or ex post facto laws; that a bill of attainder is a legislative act which inflicts punishment without
judicial trial, and that an ex Bost facto law is one which im
poses a punishment for an act which was not punishable at
the time it was committed, or which imposes additional punishment to that originally prescribed; that disqualification
from office or from the pursuits of an office or lawful vocation is a punishment. Chief Justice Chase and Justices
Miller, Swayne, and Davis dissented.
The next case was that of Mr. Garland, and involved the
validity of the "Iron-clad Oath," as it was termed, prescribed
for attorneys by the Act of Congress of January 24th, 1865.
Mr. Garland, subsequently Attorney-General of the United
States, had been a member of the Bar of the Supreme Court
of the United States prior to the Civil War, but when the
State of Arkansas passed her ordinance of secession, had fol
ï~~424 THE SUPREME COURT OF THE UNITED STATES.
lowed her out of the Union, and was one of her representatives in the Congress of the Confederacy. In July of 1865
he received from the President a full pardon for all offences
committed by his participation in the rebellion, and at the following term of the Court produced his pardon, and asked permission to continue to practice as attorney and counsellor,
without taking the oath required by the Act and the rule of
Court made in conformity with it, as he was unable to take it
because of the offices he had held under the Confederate Government. Mr. Justice Field, delivering the opinion of the
Court, held that the Act was unconstitutional and void, and
that exclusion from any of the professions, or any of the ordinary vocations of life for past conduct, could be regarded in
no other light than as punishment; that all enactments of
the kind were subject to the Constitutional prohibition against
the passage of bills of attainder. Besides this, the pardon of
the President relieved the petitioner from the oath required.
Mr. Justice Miller again dissented, in which he was joined by
Justices Swayne and Davis. The ground of the dissent was
stated to be that the National Legislature had the right to exclude from office and places of high public trust, the administration of whose functions are essential to the very existence
of the Government, those among its own citizens who had
been engaged in a recent effort to destroy that Government by
force, and that it was hoped that the exceptional circumstances which gave importance to the case would soon pass
away, and that the conduct of the persons affected by the
legislation would afford sufficient cause to justify its repeal or
essential modification.
A similar result was reached in the case of Pierce v. Carskadon,1 upon the ground that any act of a State which de
I 16 Wallace, 234 (1867).
ï~~CONGRESSIONAL INTERFERENCE.
425
prived defendants of an existing right for past misconduct and
without a judicial trial partook of the nature of a bill of
pains and penalties, and was subject to the Constitutional prohibition. Mr. Justice Field again delivered the opinion of the
Court, Mr. Justice Bradley dissenting on the ground that the
test oath in question was as competent for the State to exact
as a war measure in time of civil war.
A singular instance of legislative interference with the
right of the Court to consider a question properly before it
occurs in Ex parte McCardle,' which was twice before the
Court. McCardle had been arrested and held in custody by a
Military Commission, organized in the State of Mississippi
under the Reconstruction Acts, upon charges of disturbing the
public peace, inciting to insurrection, and impeding reconstruction. He duly applied to the Circuit Court of the United
States for the proper district for a writ of habeas corpus, which
was accordingly issued, but upon the return of the officer, displaying his authority, the prisoner was remanded. From this
judgment he appealed to the Supreme Court. As the case involved the validity of the Reconstruction Acts, it excited universal interest, and was argued by counsel of the greatest
professional eminence. Judge Sharkey and Robert J. Walker,
of Mississippi, David Dudley Field and Charles O'Conor, of
New York, and Jeremiah S. Black, of Pennsylvania, appeared
for the appellant, while Matthew H. Carpenter of Wisconsin,
Lyman Trumbull, of Illinois, and Henry Stanbery, AttorneyGeneral of the United States, appeared upon the other side.
Before the case was decided, an Act was introduced into Congress repealing so much of the law as authorized the appeal
to the Supreme Court from the judgment of the Circuit Court
16 Wallace, 318 (1867); 7 Wallace, 506 (1868).
ï~~426 THE SUPREME COURT OF THE UNITED STATES.
on writs of habeas corpus, or the exercise of jurisdiction on appeals already taken. The President vetoed the bill, but Congress passed it over his veto, and it became a law. While
the Act was pending in Congress, the attention of the Court
was called to it, and Mr. Justice Grier wrote a brief but forcible protest against any postponement of the decision of the
case until the Act should be disposed of. In this protest Mr.
Justice Field concurred. The validity of the Act, however,
was sustained in an opinion by the Chief Justice, in which it
was held that no judgment could be rendered in a suit after
the repeal of the Act under which it had been brought and
prosecuted. "It is quite clear," said he, "that this Court
cannot proceed to pronounce judgment in this case as it has
no longer jurisdiction of the appeal, and judicial duty is not
less fitly performed by declining ungranted jurisdiction, than
in exercising formally that which the Constitution and laws
confer."
In Corbett v. Nuttll1 and Miller v. The United Stales2 the
Constitutionality of the Confiscation Act came directly before
the Court. The validity of the Act was sustained by Mr.
Justice Strong, upholding the power of Congress to legislate
for the punishment of offences against the sovereignty of the
Union, and declaring that the portion which provided for the
confiscation of the property of rebels was passed in the exercise of the war powers of the Government. Justices Field,
Clifford and Davis dissented, the two former because of the
character of the Act, the latter because of the character of
the property seized?.
1 lo Wallace, 464 (1870). 2 II Wallace, 268 (187o).
3 See also McVeigh v. Windsor, II Wallace, 259 (1870). Osborne v. United
States, 91 U. S., 475 (1875); Windsor v. McVeigh, 93 U. S., 274 (1876).
ï~~.PRESIDENTIAL PARDONS.
427
In Conrad v. Waflesx the Court held that the Act in its
provisions for the confiscation of property applied only to the
property of persons who thereafter might be guilty of acts of
disloyalty and treason, and that the provisions declaring all
transfers of property by enemies null and void, only invalidated the transaction as against the right of the United States
to claim the forfeiture of the property.
And in Burbank v. Conrad" it was held that by the decree
of condemnation under the Act, the United States acquired only
the life estate of the alleged offender actually possessed by
him at the time of its seizure, and that accordingly a previous sale, although not recorded, was not affected.
Several cases came before the Court on appeal from the
Court of Claims, which had been brought for the recovery of
the proceeds of cotton seized by officers of the United States
under the Captured and Abandoned Property Act of March
12th, 1863. In Padelford's case,' the petitioner having taken
the oath of allegiance prescribed by the proclamation of President Lincoln, of December 8th, 1863, and kept it inviolate, it
was held that he was entitled to claim the proceeds of cotton
subsequently seized and sold under the Act; that the effect of
the Presidential pardon, in the eye of the law, was to make the
offender as innocent as if he had never committed the offence;
that the pardon had purged him at the time of the seizure.
In the words of the Chief Justice, "The law made the grant
of pardon a complete substitute for proof that he gave no aid
or comfort to the rebellion."
In Klein's case4 the validity of an Act of Congress which
undertook to do away with the effect and operation of a pardon was brought to the notice of the. Court. The Court held
196 U. S., 279 (1877). 2Ibid. 291 (1877).
39 Wallace, 531 (1869). "13 Wallace, 129 (1871).
ï~~428 THE SUPREME COURT OF THE UNITED STATES.
the Act to be unconstitutional, as being in substance an attempt to prescribe to the Judiciary the effect to be given to
the previous pardon of the President. "It is clear," said the
Chief Justice, "that the Legislature cannot change the effect of
such a pardon any more than the Executive can change a law.
Yet this is attempted by the provision under consideration.
The court is required to receive special pardons as evidence
of guilt, and to treat them as null and void. It is required
to disregard pardons granted by proclamation on condition,
though the condition has been fulfilled, and to deny them
their legal effect. This certainly impairs the executive authority, and directs the Court to be instrumental to that end."
In Mrs. Armstrong's case' the Court declined to consider
whether the evidence was sufficient to prove that the claimant
had given aid and comfort to the rebellion, and held that the
Presidential proclamation of pardon "was a public act of
which all Courts of the United States are bound to take notice, and to which all Courts are bound to give effect."'
In various other cases the Court considered the legislative power of the insurgent States during the Civil War, and
the extent to which the Confederate Government could be
regarded as a de facto Government.3
It was held in general that all the enactments of the de
facto legislatures in the insurrectionary States during the
war, which were not in terms hostile to the Union or to the
authority of the General Government, and which were not in
conflict with the Constitution of the United States or of the
States, had the same validity as if they had been the enact1 13 Wallace, 154 (1871).
2 See also Knote v. United States, 95 U. S., 154 (1877).
3 Horne v. Lockhart, 17 Wallace, 580 (1873). United States v. Insurance Companies, 22 Wallace, o103 (1874). Sprott v. United States, 20 Wallace, 464 (1874).
ï~~THE OBLIGATION OF CONTRACTS.
429
ments of legitimate legislatures. Any other doctrine than
this, it was asserted, would work great and unnecessary hardship upon the people of such States without any corresponding
benefit to the citizens of other States, and without any advantage to the National Government.'
The Court also sustained the right of citizens not in the
military service, in States where the several Courts were open
and in the undisturbed exercise of their jurisdiction, to protection from military arrest and imprisonment during the war.'
The same protection was extended to officers and soldiers
of the Army of the United States in the enemy's country
during the war.' And in the case of Dow v. Johnson,4 the
point was determined that an officer of the Army of the
United States, while in service in the enemy's country, was
not liable to a civil action in the courts of that country for
injuries resulting from acts of war ordered by him in his
military character, and that he could not be called upon to
justify or explain his conduct in that civil tribunal, his responsibility being only to his own Government and its laws.
The obligation of contracts was considered in the Binghamton Bridge Case,5 in which the doctrines of the Dartmouth College case were again affirmed and enforced in the
strictest manner. An interesting contrast is presented by
Bridge Proprietors v. Hoboken Company,6 in which an act of
the State of New Jersey, passed in 1790, creating a turnpike
company, had given certain commissioners power to make a
1 See opinion of Mr. Justice Strong in United States v. Insurance Companies,
22 Wallace, o103 (1874).
'Beckwith v. Bean, 18 Wallace, 5o10 -(1873).
' Coleman v. State of Tennessee, 97 U. S., 509 (1878).
* 100 U. S., 158 (1879).
53 Wallace, 51 (1865). See also Turnpike Co. v. State, Ibid., 210xo (1865).
61 Wallace, 116 (1863).
ï~~430 THE SUPREME COURT OF THE UNITED STATES.
contract with any person for the building of a bridge over the
Hackensack River: it was provided that the contract should
be binding on the parties so contracting as well as on the State,
and that it should not be lawful for any person whatsoever to erect any other bridge for a term of ninety-nine
years. It was held that although this was a contract which
could not be impaired, yet a railway viaduct consisting of
a structure made so as to lay iron rails thereon, on which
engines and cars could be propelled, but which could not
be crossed by man or beast except in railway cars, was not
a bridge in the sense of the Act of 1790. Mr. Justice
Miller, in delivering the opinion of the Court, after admitting that those who built the bridge were entitled to protection against the erection of another bridge, and that the
grant of tolls for a period of ninety-nine years had created a
necessary monopoly, without which the corporators would not
have invested their money, pointed out that in the course of
seventy years the progress of the world in the arts and sciences
had been so rapid, and human enterprise had introduced such
radical changes in the means of transportation of persons
and property, including those of crossing water-courses, both
large and small, to which steam was applied, as to work a
revolution, and that the word " bridge,'; in the ancient statue
ought not to be and could not be construed in a broad sense
so as to arrest the march of improvement.
Mr. Justice Grier concurred, contending that the proposition that one legislature could restrain the power of future
legislatures from erecting bridges for ninety (and if ninety, a
thousand) years, for a distance of ten miles (and if ten, an
hundred), would hardly be assented to by any one.'
1 The obligation of contracts was still further discussed in Curtis v. Whitney,
13 Wallace, 68 (1871); White v. Hart, Ibid., 646 (1871); Pennsylvania College Cases,
ï~~GELPCKE v. THE CITY OF DUBUQUE.
431
An interesting question is discussed in Walker v. Whitehead,' as to the extent to which laws, existing at the time
and place of making a contract, and where it is to be performed, enter into, and form a part of it. It was held that
wherever they affect the validity, construction, discharge, and
enforcement of the contract, no subsequent legislation could
alter them; that the ideas of validity and remedy are inseparable, and both are parts of the obligation which is guaranteed by the Constitution against impairment; and that though
the States might change the remedy, if no substantial right
secured by the contract be impaired, yet whenever such a result is produced by the act in question, to that extent it is
void. This was followed by Olcolt v. County Board of Supervisors of Fond du Lac County,2 where it was held that if a
contract when made was valid, under the Constitution and
laws of a State as they had been previously enforced by its
judicial tribunals, and as they were understood at the time,
no subsequent act of the Judiciary or Legislature would be
regarded by the Supreme Court of the United States as establishing its invalidity.
In the well-known case of Gelpcke v. The City of Dubuque,3 which involved the power of municipal corporations to
borrow money upon coupon bonds in aid of a railroad for
public purposes, as the main question, the doctrine of a general commercial jurisprudence was discussed and the right of
the Federal Courts to consider questions not of a Federal
character and arrive at their own conclusions, irrespective of
State decisions, was fully established. The case has been
viewed as a radical departure from precedent and principle,
Ibid., 190 (1871); Tomlinson v. Jessup, 15 Wallace, 454 (1872); Walker v. Whitehead, 16 Wallace, 314 (1872); Olcott v. Supervisors, Ibid., 678 (1872).
Si6 Wallace, 314 (1872). 2 16 Wallace, 678 (1872). 8 1 Wallace, 175 (1863).
ï~~432 THE SUPREME COURT OF THE UNITED STATES.
due doubtless to a desire to prevent an effort on the part of
the community concerned to evade the payment of its debts.
But it has become a root as prolific of much-dreaded consequences, as that planted in Swift v. Tyson, from which it
was an offshoot.
Mr. Justice Swayne, after quoting the earliest State decisions in force at the time of the making of the contract, said:
" It is urged that all these decisions have been overruled by the Supreme Court of the State, * * * and it is insisted that in cases involving
the construction of a State law or Constitution, this Court is bound to
follow the latest adjudication of the highest Court of the State. * * * It
cannot be expected that this Court will follow every oscillation that may
occur. The earlier decisions, we think, are sustained by reason and
authority. They are in harmony with the adjudications of sixteen States
of the Union. * * * It is the settled rule of this Court to follow the
decisions of State Courts, but there have been heretofore in the judicial
history of this Court many exceptional cases. We shall never immolate
truth, justice and the law because a State tribunal has erected the altar
and decreed the sacrifice."
From this view Mr. Justice Miller dissented in a most
powerful opinion, declaring that the doctrine now announced
by the Court
"was a step in advance of any heretofore decided on this subject; that advance is in the direction of a usurpation of the right which belongs to the
State Courts to decide as a finality upon the construction of State Constitutions and State statutes. This invasion is made in a case where there
is no pretence that the Constitution as thus construed is any infraction
of the laws or Constitution of the United States."
He pointed out that the decision was in conflict with the
former decisions of the Court,' and declared:
1 Leffingwell v. Warren, 2 Black, 599 (1862). See an admirable and exhaustive article
entitled "Decisions of the Federal Courts on Questions of State Laws," by Win.
M. Meigs, Esq., VIII Southern Law Review, 452, in which the departure, which
ï~~DISREGARD OF DECISIONS OF STATE COURTS. 433
"The construction given to a State statute by the highest tribunal of
such State is regarded as a part of the statute, and is as binding upon
the Courts of the United States as the text. * * * If the highest
judicial tribunal of a State adopt new views as to the proper construction of such a statute, and reverse its former decision, this Court will
follow the latest settled adjudications. For us to refuse to carry out this
doctrine will lead to direct aid unseemly conflicts with the Judiciary of
the States."1
The same question arose in Meyer v. The City of Muscatine,2 and was again confirmed in Havemeyer v. Iowa
County,3 where it was held that if the contract when made
was valid by the Constitution and laws of the State as
then expounded by the highest authority whose duty it
was to administer them, no subsequent action by the Legislature or Judiciary could impair its obligations, and the Supreme Court of the United States would not follow the most
recent decisions of the State Supreme Courts. In vain did
Mr. Justice Miller in his dissenting opinion declare that
he had been compelled at Circuit to commit to jail over one
hundred of the best citizens of Iowa for obeying an injunction issued by a competent Court of their own State, founded,
as they conscientiously believed, on the true interpretation of
their own statute,-an injunction, which in his private judgment, they were legally bound to obey. In vain did he
lament the conflict of authority. In vain did Chief Justice
is now a wide one, from the doctrines expressed by Chief Justice Marshall in
Elmendorf v. Taylor, 10 Wheaton, 152 (1825), and Mr. Justice Washington in
Golden v. Prince, 3 Washington C. C. Rep., 314 (1814), is traced through all the
cases.
'Shelby v. Guy et al., ii Wheaton, 361 (1826). McCluny v. Silliman, 3 Peters,
277 (1830). Van Rensselaer, v. Kearney, ii Howard, 297 (1850). Webster v. Cooper,
14 Howard, 504 (1852). 21 Wallace, 384 (1863).
S 3 Wallace, 294 (1865). See also Thomson v. Lee County, 3 Wallace, 327 (1865).
Chicago v. Sheldon, 9 Wallace, 50 (1869). City v. Lamson, Ibid., 478 (1869).
28
ï~~434 THE SUPREME COURT OF THE UNITED STATES.
Chase dissent. The doctrine was distinctly affirmed by Mr.
Justice Swayne, sustained by a majority of the Court, that
where a question involved in the construction of State statutes
practically affects those remedies of creditors which are protected by the Constitution, the Supreme Court of the
United States will exercise its own "judgment on the meaning of the statutes irrespective of the decisions of the State
Courts, and if it deems those decisions wrong will refuse to
follow them. The same conclusion was reached in 1869 in
the case of Butz v. The City of Muscatine,) and in Township
of Pine Grove v. Talcott, 2 Mr. Justice Swayne again observing,
"The question before us belongs to the domain of general
jurisprudence. In this class of cases this Court is not bound
by the judgments of the Courts of the States where the
cases arise.. It must hear and determine for itself."3
In still further illustration of the independence of the
Federal Judiciary upon questions of general law, some striking
features are presented by the case of York County v. Central
Railroad,4 - in which it was held that the common law liability of a common carrier might be limited by special contract if such exemption does not cover loss by negligence or misconduct-and by the case of Railroad Co. v. Lockwood,5 where
it was distinctly ruled by Mr. Justice Bradley in an opinion
of surpassing power that a common carrier cannot stipulate
for exemption from responsibility arising from the negligence
18 Wallace, 575 (1869). 2 19 Wallace, 666 (1873).
3 Compare this decision with Walker v. Board of State Harbor Commissioners,
17 Wallace, 648 (1873), where it was held that in the construction of State statutes
affecting the title to real property, where no Federal question arises, this Court
will follow the adjudications of the highest Court of the State.
'3 Wallace, o107 (865). Affirming the case of New Jersey Steam Navigation
Co. v. Merchants' Bank, 6 Howard, 344 (1848).
S17 Wallace, 357 (1873).
ï~~FREEDOM OF LOCOMOTION.
435
of himself or his servants and that State decisions to the contrary will be swept aside.'
Several interesting questions arose relating to Patents, in
which the general principle was laid down that patents for
inventions are not to be treated as mere monopolies, and,
therefore, odious in the eye of the law; but they are to receive a liberal construction, and under a fair application of the
rule ut/ res magis valeat quanm fereat, the rights of the inventor are to be upheld and not destroyed.2 The diverse sciences
of jurisprudence and mechanics were brought with memorable
ability to bear as sister lights upon the matter in issue; and
the precincts of law were converted into an Academy.3
The Police Powers of the States were fully considered. It
was held that where a party was indicted in a State Court for
doing an act contrary to the statute of a State, and set up a
license from the United States under one of its statutes, and
the decision of the State Court was against the right claimed,
the Supreme Court had jurisdiction under the 25th Section of
the Judiciary Act. But the power of the United States was
not to be stretched to the point of making an act forbidden
by a State a matter of meritorious conduct, nor had Congress
the right to license any one to violate the criminal laws of a
State.4
In the important case of Crandall v. The State of Nevada,5
Mr. Justice Miller, in a most interesting opinion, held that a
SThis decision practically annuls the decisions of State Courts, notably those
of the State of New York where such contracts are held to be valid, if suit should
be brought in a Federal Court. See also Forepaugh v. Delaware, Lackawanna &
Western R. R. Co., 128 Penna. St. 217 (1889).
2 Turrill v. R. R. Co., I Wallace, 491 (1863). Burr v. Duryee, Ibid., 531 (1863).
- Case v. Brown, 2 Wallace, 320 (1864).
4 Van Allen v. Assessors, 3 Wallace, 573 (1865). McGuire's case, 3 Wallace, 302
(1865). The License Tax cases, 5 Wallace, 462 (1866). Purvear v. Commonwealth,
5 Wallace, 476 (1866). 56 Wallace, 35 (1867).
ï~~436 THE SUPREME COURT OF THE UNITED STATES.
State law imposing a capitation tax on passengers by railroad
or stage-coach was unconstitutional, and that every citizen of
the United States had a right to pass through a State without
interruption as freely as in his own State. Relying upon the
decisions of Marshall's day, he showed, by a most unanswerable course of reasoning, that the people of these United States
constituted one nation; that they had a Government in which
all were deeply interested; that this Government had necessarily a Capital established by law where its principal operations were conducted; that there sat its Legislature, composed
of Senators and Representatives of the States and of the people
of the States; that there resided the President, directing
through thousands of agents the execution of the laws all
over the land; that there was the seat of the Supreme Judicial
authority of the nation to which all citizens had a right to
resort in search of justice; that there were the Executive departments, administering the offices of the mails, of the public
lands, of the collection and distribution of the public revenues,
and of our foreign relations; that the Federal power had a
right to declare and prosecute wars, and, as a necessary incident, to raise and transport troops through and over the territory of any State of the Union; that if this right were
abandoned in any sense, however limited, upon the pleasure
of a State, the Government itself might be overthrown by an
obstruction to its exercise; that the citizen also had correlative
rights; that he had a right to come to the seat of Government
to assert any claim he might have, or to transact any business; that he had a right to seek its protection, to share its
offices, or engage in administering them; to enjoy free access
to its seaports, and that these rights were in their nature
independent of the will of any State over whose soil he must
pass in the exercise of them.
ï~~INTER-STA TE COMMER CE.
437
"We are all citizens," said he, "of the United States, and as members of the same community must have the right to pass and repass
through every part of it without interruption as freely as in our own
States, and a tax, imposed by a State for entering its territory or harbors, is inconsistent with the rights which belong to citizens of other
States as members of the Union, and with the objects which that Union
was intended to attain. Such a power in the States could produce nothing
but discord, or mutual irritation, and they very clearly do not possess
it." 1
The act was held void upon the ground that it conflicted
with the Commerce clause of the Constitution.
Another illustration of the same principle is found in
Steamshzi Company v. Portwardens,2 in which it was held that
an act providing that the Masters and Wardens of a port
within a State should be entitled to receive, in addition to
other fees, five dollars for every vessel arriving in port, was
a regulation of commerce, and a duty on tonnage, and therefore unconstitutional and void.
So also in the case of the State Freight Tax,3 it was
held that inter-State transportation of freight was not subject
to State taxation, and that such a tax was a regulation of
inter-State transportation, and therefore a regulation of commerce among the States, and hence unconstitutional and void.
The opinion was delivered by Mr. Justice Strong, and all
previous decisions of the Court were thoroughly and carefully reviewed.4
In contrast with these cases is the conclusion reached in
Osborne v. The Citly of Mobile,5 in which an ordinance ref See the Passenger Cases, 7 Howard, 283 (1849; Brown v. State of Maryland,
12 Wheaton, 419 (1827); McCulloch v. Maryland, 4 Wheaton, 316 (1819).
26 Wallace 31 (1867). s I5 Wallace, 232 (1867).
4 See Almy v. State of California, 24 Howard, 169 (186o). Woodruff v. Par.
ham, 8 Wallace, 123 (1868). 516 Wallace, 479 (1872).
ï~~438 THE SUPREME COURT OF THE UNITED STATES.
quiring that every express company or railroad company, doing
business in that city, should pay an annual license fee, and
imposing a fine for the violation of its provisions, was sustained, notwithstanding the fact that some of the railroads
had business extending beyond the limits of the State. It
was held that the license tax was upon a business carried on
entirely within local limits, and the Court agreed that a tax
on business, carried on within a State and without discrimination between its citizens and the citizens of other States,
might be Constitutionally imposed and collected.
Several other notable cases under the Commerce clause
arose, as in Gilman v. The City of Philadelphia,1 in which
the right of a State to erect a bridge across a navigable
stream was sustained, under the power of the States to exercise concurrent jurisdiction. It was held that as the power
to authorize the building of bridges had not been taken
from the States, they might exercise such authority until restrained by the action of Congress. The opinion was
delivered by Mr. Justice Swayne, who said:
"The case stands before us as if the parties were the State of Pennsylvania and the United States. The river being wholly within her
limits, we cannot say the State has exceeded the bounds of her authority.
Until the dormant power of the Constitution is awakened and made
effective by appropriate legislation, the reserve power of the State is
plenary, and its exercise in good faith cannot be made the subject of
review by this Court."
In the case of Paul v. Virginia2 it was held that the law of
a State requiring insurance companies of other States to enter
security before they could issue policies in the State, was Constitutional, and that States might exclude a foreign corporation
13 Wallace, 713 (1865).
3 8 Wallace, 168 (1868).
ï~~ADMISSION OF WOMEN TO THE BAR.
439
entirely, or might exact such security for the performance of
their contracts with their citizens, as in their judgment would
best promote the public interest.1
In Railroad Co. v. Fuller2 a State statute which required
that each railway company should annually fix its rates for
the transportation of passengers and freights of different kinds
was not unreasonable nor unconstitutional, inasmuch as it
amounted merely to a police regulation which was fully within
the power of the States.3
Two other cases belonging to this period deserve a passing notice. In the case of Bradley v. Fisher,4 the Court, in
a most elaborate opinion by Mr. Justice Field, stated the correlative rights and duties of Court and Bar, and in Bradwell
v. The State of Illinois 5 held that a woman had no right to demand admission to the Bar. The power of a State to prescribe
qualifications for admission to the Bar of its own Courts was
unaffected by the Fourteenth Amendment, and the reasonableness or propriety of the rules that might be adopted could not
be reviewed in the Supreme Court, the right to practice law in
the State Courts not being such a privilege or immunity of
a citizen of the United States as to be within the protection
of the Amendment.6
1 This conclusion was distinctly affirmed in Ducat v. Chicago, Io Wallace, 4o10
(1870). Ins. Co. v. Massachusetts, Ibid., 573 (1870). 2 17 Wallace, 56o (1873).
s These police regulations had been considered in the License Tax Cases, 5 Wallace, 462 (1866). 13 Wallace, 336 (1871). 6 i16 Wallace, 130 (1872).
6 In this connection it is interesting to note that up to the present time eight
women have been admitted to practice in the Supreme Court of the United States
under the terms of an Act of Congress:-Belva A. Lockwood, of Washington, D. C.,
March 3d, 1879; Laura De F. Gordon, of California, February 3d, 1883; Ada M. Bittenbender, of Lincoln, Neb., October 15th, 1888; Carrie B. Kilgore, of Philadelphia, Pa.,
January 8th, 1890; Clara S. Folte, of San Diego, Cal., March 4th, 189o; Lelia E.
Santalle, of Boston, Mass., Emma M. Gillett, of Washington, D. C., April 8th, 1890;
Marilla M. Ricker, of Washington, D. C., May Ith, 1891.
ï~~440 THE SUPREME COURT OF THE UNITED STATES.
CHAPTER XVIII.
THE SEVENTH EPOCH: 1870-1890: THE CLIMAX OF FEDERALISM: FINANCIAL
LEGISLATION OF CONGRESS: THE EARLY LEGAL TENDER CASES: BRONSON v.
RODES: BUTLER v. HORWITZ: HEPBURN v. GRISWOLD: THE UNCONSTITUTIONALITY OF PAPER MONEY DECLARED: CHANGES IN THE COMPOSITION OF THE
COURT: THE LATER LEGAL TENDER CASES: KNOX v. LEE: PARKER V. DAVIS:
DOCTRINE OF HEPBURN v. GRISWOLD REVERSED: THE CONSTITUTIONALITY OF
PAPER MONEY ESTABLISHED: THE THIRTEENTH, FOURTEENTH AND FIFTEENTH
AMENDMENTS: UNEXPECTED NARROWNESS OF CONSTRUCTION: THE SLAUGHTER
HOUSE CASES; SKETCHES OF JUSTICES STRONG, BRADLEY AND HUNT.
E now enter the seventh and last epoch in the
history of the Court during the first century of
its existence,-an epoch full of interesting developments of power, the most important political and moral
achievements, marked by an enormous expansion of National
authority, moderated but not restrained by an unexpected
strictness of construction of the latest Amendments of the
Constitution.
Our great Civil Strife had left among its legacies legislation relating to the finances which, although prompted by
patriotic motives, had been adopted under the pressure and
exigencies of war, and was still debated and perhaps debatable. Problems of the gravest character arose in relation to
the Constitutional authority of Congress, and in the final
adjudication and settlement of these the summit of Federalism
was reached.,
ï~~THE NEW ERA.
441
The downfall of slavery and the bestowal of the franchise upon the recently emancipated race, the adoption of the
Thirteenth, Fourteenth and Fifteenth Amendments, by which
the rights acquired and the results determined by the Civil
War were placed under the guardianship of the Federal Government, gave birth to questions far-reaching and all-pervading
in their consequences, profoundly interesting to mankind and
of radical importance in their bearing upon the relation of
the United States to the several States of the Union.
The right of the Nation to protect her own officers, judicial and ministerial, in the discharge of their duty, against
personal violence and assassination, and the consequent extension of the Federal Judicial authority, by way of removal
from State Courts, in cases both civil and criminal; the
awakened moral indignation over the crime and shame of
polygamy; a new realization of our duties towards our Indian
wards; the conviction that involuntary political assessments
levied upon office-holders for the purposes of a campaign were
both tyrannical and corrupting; a clearer appreciation of the
relations of the States in matters of commerce; the employment of the telegraph as an instrument of familiar communication,-these and a thousand cases of like import and character have evoked judicial powers of the highest order of
excellence and have welded together the influences which have
made us in truth a Nation. The services performed by the
Court during the past twenty years are not of less importance to American nationality than the victories of the armies
in the field, nor is its fame, honestly earned, of less value
or less worthy of remembrance, in the estimation of every
thoughtful lover of our institutions, than the brilliant reputations of the orators, the statesmen and the soldiers of the
Civil War. The interests and the destinies of unnumbered
ï~~442 THE SUPREME COURT OF THE UNITED STATES.
generations will be affected for weal or for woe by the work
of the Court during this period.'
The most important and notable of the cases which
arose,-certainly among the most celebrated that have ever
been decided,-were those known as the "Legal Tender
Cases," which carried the implied powers of the Federal
Government to an altitude never before reached, and the
correctness of which has been seriously questioned by some
of the highest legal authorities, notwithstanding the final
decisions of the Court sustaining the Constitutional powers
involved. The cases are remarkable, too, as presenting the
first instance in the history of the tribunal of a solemn
reversal by the Court of its former position, upon a question
so fundamental, and a distinct overruling of its own judgment upon a matter solemnly argued and solemnly adjudicated. The action of the Court attracted wide-spread attention
both at home and abroad, and has been thought to affect public
confidence in the tribunal.2
1 Two shadows rest upon its reputation,-the reversal of its own judgment in
the Legal Tender Cases and the participation of five of its members in the work of
the Electoral Commission. The time has not yet arrived for a consideration of
either action which would be deemed free from prejudice.
2 Mr. Bryce says: "Two of its later acts are thought by some to have affected public
confidence. One of these was the reversal, first in 1871, and again upon broader but
not inconsistent grounds, in 1884, of the decision given in I87o, which declared invalid
the Act of Congress making Government paper a legal tender for debts.... Be
the decision right or wrong, a point on which high authorities are still divided,
the reversal by the highest Court in the land of its own previous decision may
have tended to unsettle men's reliance on the stability of the law; while the manner of the earlier reversal, following as it did on the creation of a new Judgeship,
and the appointment of two Justices, both known to be in favor of the view which
the majority of the Court had just disproved, disclosed a weak point in the constitution of the tribunal which may some day prove fatal to its usefulness." The
American Commonwealth, Vol. I, Part I, Chap. 24, p. 263. See Pamphlets of Mr.
George Bancroft and Mr. R. C. McMurtrie, an article in "The American Law Re
ï~~THE FIRST LEGAL TENDER CASE.
443
Prior to 1862 no statesman or jurist had asserted that
Congress had, under the Constitution, the power of making
anything but gold or silver coin a legal tender. The acts of
Congress of 25th of February, 1862, Iith of July, 1862, and 3d
of March, 1863,1 declared that the notes issued thereunder should
be "lawful money and a legal tender in payment of all debts,
public and private, within the United States, except duties on
imports, &c." Under these Acts it had been decided that
neither taxes imposed by State authority2 nor private obligations payable by their terms in gold or silver coin, were
debts, within the terms of the Acts of Congress, dischargeable
by payment in legal tender notes.3
The first case was that of Bronson v. Rodes, brought
upon a writ of error from the Court of Appeals of the State
of New York, and it appeared that the contract sued upon
stipulated for the payment of gold and silver coin, lawful
money of the United States, with interest also in coin. A
tender had been made in United States notes to an amount
nominally equal to the principal and interest of the debt,
which was refused, and the question arose whether such tender was valid.
The case was elaborately argued by Mr. Townsend and
Mr. Clarkson N. Potter, for the plaintiff in error, by Mr.
Evarts, as Attorney-General of the United States, and Mr.
Sherman S. Rogers, for the defendant in error, and the opinview," Vol. IV, p. 768, by Mr. Justice O. W. Holmes, and an article in "The Harvard Law Review," for May, 1887, Vol. I, p. 73, by Professor James B. Thayer, of
the Harvard Law School.
1 I2 Statutes, 345, 532, 709.
* Lane County v. Oregon, 7 Wallace, 71 (i868). See also Hagar v. Reclamation
District, III U S., 701o (1883).
'Bronson v. Rodes, 7 Wallace, 229, (1868); Butler v. Horwitz, Ibid., 258 (1868);
Bronson v. Kimpton, 8 Wallace 444 (1869).
ï~~444 THE SUPREME COURT OF THE UNITED STATES.
ion was delivered by Chief Justice Chase, who, after a most
elaborate review of the Coinage and Currency Acts, arrived
at the conclusion that express contracts to pay coin dollars
can only be satisfied by the payment of coin dollars, and that
they are not "debts" which may be satisfied by the tender
of United States notes. Justices Swayne and Davis concurred
in separate opinions because of the language of the contracts.
Mr. Justice Miller dissented.
A similar result was reached in the cases of Butler v
Horwitz1 and Bronson v. Kimp/on.2 Mr. Justice Miller again
dissented: he had no doubt that it was intended by the Acts
of Congress to make the notes of the United States a legal
tender for all private debts due, or which might become due,
on contracts then in existence, without regard to the intent
of the parties on that point.
In none of these cases was the Constitutionality of the
Acts considered. That question arose in the later case of
Hepburn v. Griswold,"3 argued by the same leading counsel at
great length and with masterly ability, and the further question was mooted whether the Act of Congress in relation to
legal tenders applied to debts contracted before, as well as
after enactment. In the case at bar, the contract itself antedated the Act of Congress. The opinion was delivered by
Chief Justice Chase, and was concurred in by Justices Nelson,
Clifford, Grier and Field, and dissented from by Mr. Justice
Miller for himself and Justices Swayne and Davis. After reaffirming the conclusions reached in Bronson v. Rodes and
like cases, the Chief Justice said:
1 7 Wallace, 258 (1868). Contracts expressly payable in "gold and silver dollars,"
or in "specie," can only be satisfied by payment in coin. The Legal Tender Acts
do not apply to them. Trebilcock v. Wilson, 12 Wallace, 687 (1872).
28 Wallace, 444 (1869). 38 Wallace, 603 (I869).
ï~~HEPBURN v. GRISWOLD.
44
"We do not think ourselves at liberty, therefore, to say that Congress did not intend to make the notes authorized by it a legal tender in
payment of debts contracted before the passage of the Act. We are thus
brought to the question whether Congress has power to make notes issued
under its authority a legal tender in payment of debts which, when contracted, were payable by law in gold or silver coin.... It has not been
maintained in argument, nor indeed would any one, however slightly conversant with Constitutional law, think of maintaining that there is in the
Constitution any express grant of legislative power to make any description of credit currency a legal tender in payment of debts. We must inquire, then, whether this can be done in the exercise of an implied
power.'"
He then considered the language of Chief Justice Marshall in the case of McCullock v. State of Maryland, as establishing a rule for determining whether a legislative enactment
can be supported as an exercise of implied power, and after
quoting the words: "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, wkick are not
prohibited, but consistent with the spirit and letter of the Constitution, are Constitutional," arrived at the conclusion that it
must be taken as finally settled, so far as judicial decision
could settle anything, that the words all laws 'necessary and
proper' for carrying into execution powers expressly granted
or vested, have in the Constitution a sense equivalent to that
of the words, "Laws, not absolutely necessary indeed, but appropriate, plainly adapted to Constiztutional and legitimate ends;
laws not prohibied but consistent with the letter and spirit of
the Constitution; laws really calculated to effect objects entrusted
to the Government." The question then resolved itself into
this: "Is the clause which makes United States notes a legal
tender for debts contracted prior to its enactment, a law of the
description stated in the rule?" The answer he did not con
ï~~446 THE SUPREME COURT OF THE UNITED STATES.
sider doubtful. The argument proved too much. It carried
the doctrine of implied powers very far beyond any extent
hitherto given to it. It asserted that whatever in any degree
promoted an end within the scope of a general power, whether
in the correct sense of the word "appropriate" or not, might
be done in the exercise of an implied power. This proposition,
he insisted, could not be maintained. In reply to the argument that this was a question for Congress to determine, he
answered that the admission of a legislative power to determine
finally what powers have a described relation as means to the
execution of other powers plainly granted, and then to exercise absolutely and without liability to question, in cases involving private rights, the powers thus determined to have
this relation, would completely change the nature of American
government.
" It would convert the government which the people ordained as a
government of limited powers, into a government of unlimited powers.
It would confuse the boundaries which separate the Executive and Judicial
from the Legislative authority. It would obliterate every criterion which
this Court, speaking through the venerated Chief Justice in the case
already cited, established for the determination of the question whether
legislative acts are Constitutional or unconstitutional."
And by a most elaborate course of reasoning he held
that although the Legislature had unrestricted choice among
means appropriate, yet no power could be derived by implication from any express power to enact laws as means for carrying it into execution, unless such laws should come within the
description of Marshall, and that the making of notes or bills
of credit a legal tender in payment of pre-existing debts, was
not a means appropriate or plainly adapted, or really calculated to carry into effect any express power vested in Congress; that it was inconsistent with the spirit of the Consti
ï~~MILLER'S DISSENT.
447
tution, and was in effect prohibited by the Constitution.
Therefore, the Legal Tender Acts, so far as they applied to
debts contracted before their passage, were unconstitutional and
unwarranted.
In his dissenting opinion, Mr. Justice Miller divided the
provisions of the Constitution relating to the function of legislation, into those which conferred legislative powers on Congress; those which prohibited the exercise of legislative powers
by Congress; and those which prohibited the States from exercising certain legislative powers. He subdivided the first
into positive and auxiliary powers, or, as more commonly
called, the express and the implied powers. As instances of
the former class, he cited the power to borrow money, to raise
and support armies, to coin money, and to regulate the value
thereof. The implied or auxiliary powers he contended, were
founded largely on the general provision which closed the
enumeration of powers granted in express terms, by the declaration that Congress should have power also to make all
laws that would be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested
by the Constitution in the Government of the United States,
or in any department or officer thereof. He pointed out that
although the Constitution prohibited any State from coining
money, emitting bills of credit, or making anything else but
gold and silver coin a payment of debts, yet no such prohibition was placed upon the power of Congress on this subject, while on the contrary, Congress was expressly authorized
to coin money and to regulate the value thereof, and of all
foreign coin, and to punish the counterfeiting of such coin, and
of the securities of the United States. He insisted that this
latter clause, when fairly construed, conferred the power to
make the securities of the United States a legal tender in
ï~~448 THE SUPREME COURT OF THE UNITED STATES.
payment of debts. In considering the scope of the words
" necessary and proper," he declared that the necessity need
not be absolute, nor need the adaptation of the means to the
end be unquestioned. On the contrary, as Chief Justice Marshall had said, "a thing may be necessary, very necessary,
absolutely or indispensably necessary," and that the word,
like all others, was viewed in various senses, and in its construction, the subject, context, and the intention of the persons
using them, were all to be taken into view.
He then pointed out that the power to declare war, to
suppress insurrection, to raise and support armies, to provide
and maintain a navy, to borrow money on the credit of the
United States, to pay the debts of the Union, and to provide
for the common defence and general welfare, were all express
powers distinctly and specifically granted in separate clauses
of the Constitution, and that when Congress was called on to
devise some new means of borrowing money on the credit of
the United States for the purpose of meeting the peril incident to a state of civil war that the Legal Tender Acts furnished instantly a means of paying the soldiers in the
field, and of filling the coffers of the commissary and quartermaster; that they further furnished a medium for the payment
of private debts as well as public, at a time when gold was
being rapidly withdrawn from circulation, and the State bank
currency was becoming worthless; that they furnished the
means to the capitalist of buying the bonds of the Government, that they stimulated trade, revived the drooping energies of the country, and restored confidence to the public
mind. He therefore reached the conclusion that not only
did the necessity in the Constitutional sense of the term
exist, but that the means adopted bore to the necessity, a
proper and Constitutional relation. He also held that where
ï~~SHALL THE DECISION STAND?
449
there was a choice of means, the selection rested with Congress, and not with the Court, and that if the Act to be considered was in any sense essential to the execution of an acknowledged power, the degree of that necessity was for the
Legislature, and not for the Court to determine. He therefore expressed the opinion that Congress had acted within
the scope of its authority, and that he must hold the law
to be Constitutional, and dissent from the opinion of the majority of the Court. In this conclusion Mr. Justice Swayne
and Mr. Justice Davis concurred. Several other cases, in one
of which Mr. Benjamin R. Curtis appeared as counsel, depending upon the same question, were ruled in the manner
indicated by the judgment of the majority of the Court.'
The utmost excitement prevailed in the public mind immediately after the announcement of the decision, and it was
not long before it became generally understood that an effort
would be made to secure a reconsideration of the judgment.2
1Broderick's Excr. v. Magraw, 8 Wallace, 639 (1869); Willard v. Tayloe, 8 Wallace, 557 (1869). See also Thompson v. Riggs, 5 Wallace, 663 (1866).
2 A charge has been made that the Supreme Court was packed for the purpose,
but examination of a few simple facts and dates shows it to be without foundation,
except so far as political prejudice and dissatisfaction with the final result may unite
to pervert the evidence. The charge is based upon the common fallacy: post hoc,
ergo proper hoc.
The case of Hepburn v. Griswold had been argued for the first time at the December term of 1867 by private counsel. Subsequently, Mr. Stanbery, then Attorney-General of the United States, suggesting the great public importance of the
question, secured a re-argument, and the case was again argued in 1868 by Mr. B. R.
Curtis, Mr. Evarts and Mr. Potter. Four other cases involving similar questions
were also heard. While the question was still undecided, and ten months before the
decision was announced, Congress had passed an Act on the loth of April, 1869, to
take effect on the first Monday of the following December, authorizing the appointment of an additional Justice of the Supreme Court, and at the same time the Act of
23d July, 1866, reducing the number of Associate Justices from nine to six by not
filling vacancies as they should occur, was repealed. At this time the deaths of
Justices Catron and Wayne had reduced the number of Associates to seven. The
29
ï~~450 THE SUPREME COURT OF THE UNITED STATES.
An Act of Congress had been passed on the ioth of
April, 1869, to take effect on the first Monday of the succeeding December, authorizing the appointment of an additional Justice of the Supreme Court. A vacancy also existed
through the resignation of Mr. Justice Grier. The decision in
effect of the Act of 1869 was to make the Court consist of a Chief Justice and eight
Associates. On the 15th December, 1869, two weeks after the new law went into
effect and nearly two months before the decision in Hepburn v. Griswold was announced, Mr. Justice Grier resigned, his resignation to take effect in the following
February. Mr. Stanton was commissioned as his successor on the 20th of December, 1869, but died four days afterwards. Several ineffectual efforts were made to
fill his place, but the nominations failed of confirmation. On the 7th February, 1870,
the decision was announced, and at this time, therefore, there were two existing
vacancies in the Court, one under the Act of 1869, the other through the resignation
of Mr. Justice Grier. On the very day of the decision-7th February, 187o--the names
of Joseph P. Bradley and William Strong were sent to the Senate in that order without
specifying to which vacancy either was to be assigned. It is preposterous to assert
that before the decision of the Court was an hour old and its effects could be considered, President Grant had matured a well-digested plan, with carefully selected
instruments, to accomplish a reversal of a solemn judgment-an event unheard of
and unparalleled at that time--by filling vacancies created months before the decision was known, and which would have been filled by others than those finally
chosen had not death and disagreement between the Senate and the President deprived the latter of his original choice.
As to the well-known views of Judge Strong, who had been Lincoln's choice for
Chief Justice, and who had decided the cases of Shollenberger v. Brinton, 52 Pa.
St., 9, in 1866, sustaining the legal tender features of the Acts of Congress, it is
to be remarked that the majority of the Judges of the Supreme Courts of fifteen States
in the Union had pronounced similar views, and in only two States-New Jersey and
Kentucky-had final decisions been rendered adverse to the validity of the legal
tender provisions of the Acts, Martin v. Martin, 20 N. J. Eq., 421 (1870); Griswold v.
Hepburn, 2 Duvall, (Ky.) 2o (1865). The State decisions affirming the power were
George v. Concord, 45 N. H., 434 (1864); Carpenter v. Bank, 39 Vt., 46 (1866); Essex
Co. v. Pacific Mills, 14 Allen (Mass.) 389 (1867); Metropolitan Bank v. Van Dyck, 27
N. Y., 400 (1863); Legal Tender Cases, 52 Pa. St., 9 (1866); Thayer v. Hedges, 23
Ind., 141 (1864); Van Husen v. Kanouse, 13 Mich., 303 (1865); Breitenbach v. Turner,
18 Wis., 140 (1864); O'Neil v. McKewn, i S. C. 147 (1869); Wills v. Allison, 4 Heiskell
(Tenn.) 385 (1871); Breen v. Dewey, 16 Minn., 136 (1870); Hintrager v. Bates, 18 Iowa,
174 (1864); Riddlesbarger v. McDaniel, 38 Mo., 138 (1866); Verges v. Giboney, Ibid.,
458 (1866); Cox v. Smith, I Nev. 161 (1865); Lick v. Faulkner, 25 Cal., 404 (1864).
ï~~THE LATER LEGAL TENDER CASES.
451
Hepburn v. Griswold had been pronounced upon the 7th of
February, 1870. On the same day the names of Mr. Bradley
and Mr. Strong were sent to the Senate. On the 14th of
March of that year Mr. Justice Strong became a member of
the Court, having been commissioned on the 18th of February, and on the 2Ist of March Mr. Justice Bradley was also.
commissioned. Shortly after this a motion was made by the
Attorney-General of the United States, that two cases, those
of Lathams v. United States, and Demming v. United States,
brought by appeal from the Court of Claims, should be set
down for argument, and that the legal tender question might
be reconsidered. These cases were subsequently withdrawn
from the record, but the question again arose in Knox v. Lee
and Parker v. Davis,' and the whole question was again
opened for the consideration of the Court, and argued with
the utmost elaboration. The former decision in Hepburn v.
Griswold was distinctly overruled, and it was held that the
Legal Tender Acts were Constitutional and valid, both as to
contracts made before and since their passage. The opinion
of the Court was delivered by Mr. Justice Strong, who pointed
out that if the Acts were held to be invalid as applicable to
debts incurred or transactions which had taken place since
their enactment, the decision would cause throughout the
country great business derangement, wide-spread distress, and
the rankest injustice. Debts which had been contracted since
February 25th, 1862, constituted by far the greatest portion of
the existing indebtedness of the country; they had been contracted in view of the Acts of Congress declaring Treasury
notes a legal tender, and, in reliance upon that declaration,
men had bought and sold, borrowed and lent, and assumed
every variety of obligations, contemplating that payment might
1I2 Wallace, 457 (1870).
ï~~452 THE SUPREME COURT OF THE UNITED STATES.
be made with such notes. If by the decision it was established that these debts and obligations could be discharged
only by gold coin; if, contrary to the expectations of all parties to these contracts, legal tender notes were rendered valueless, the Government would at once become an instrument of
the grossest injustice, and all debtors would be loaded with an
obligation which it was never contemplated they should assume; a large percentage would be added to every debt, and
such must become the demand for gold to satisfy contracts,
that ruinous sacrifices, general distress and bankruptcy might
be expected.
"The consequences of which we have spoken, serious as they are,
must be expected if there is a clear incompatibility between the Constitution and the Legal Tender Acts; but we are unwilling to precipitate them
upon the country unless such an incompatibility plainly appears. A
decent respect for a co-ordinate branch of the Government demands that
the Judiciary should presume, until the contrary is clearly shown, that
there has been no transgression of power by Congress-all the members
of which act under the obligation of an oath of fidelity to the Constitution."
He then entered upon a most elaborate investigation of
the nature and extent of the powers conferred by the Constitution upon Congress, keeping in view the objects for which
those powers were granted, and deduced, as a necessary inference from the war powers, the conclusion that the provision
which made Treasury notes a legal tender for the payment of
all debts, other than those expressly excepted, was not an inappropriate means for carrying into execution the legitimate
powers of the Government, nor was it forbidden by the letter
or spirit of the Constitution. He said:
"In so holding, we overrule so much of what was decided in Hepburn v. Griswold as ruled the acts unwarranted by the Constitution so
ï~~OPINIONS OF STRONG AND BRADLEY.
458
far as they apply to contracts made before their enactment. That case
was decided by a divided Court, and by a Court having a less number
of Judges than the law then tin existence provided this Court shall
have. These cases have been heard before a full Court, and they have
received our most careful consideration. The questions involved are Constitutional questions of the most vital importance to the Government and
to the public at large. We have been in the habit of treating cases involving a consideration of Constitutional power differently from those
which concern merely private rights. We are not accustomed to hear
them in the absence of a full Court, if it can be avoided. Even in cases
involving only private rights, if convinced we had made a mistake, we
would hear another argument and correct our error, and it is no unprecedented thing in Courts of last resort, both in this country and England,
to overrule decisions previously made. We -agree this should not be done
inconsiderately, but in a case of such far-reaching consequences as the
present, thoroughly convinced as we are that Congress has not transgressed its powers, we regard it our duty so to decide and affirm both
these judgments."
A most vigorous concurring opinion was read by Mr.
Justice Bradley, in which he stated that he regarded the question of power as so important to the stability of the Government, that he could not acquiesce in the decision of Hepburn
v. Griswold.
"I cannot consent," said he, "that the Government should be deprived of one of its just powers by a decision made at the time and under
the circumstances in which that decision was made. On a question relating to the power of the Government where I am perfectly satisfied that
it has the power, I can never consent to abide by a decision denying it,
unless made with reasonable unanimity, and acquiesced in by the country. Where the decision is recent, and is only made by a bare majority
of the Court, and during a time of public excitement on the subject,
when the question has largely entered into the political discussions of the
day, I consider it our right and duty to subject it to a further examination, if a majority of the Court are dissatisfied with the former decision.
And in this case, with all deference and respect for the former judgment
ï~~454 THE SUPREME COURT OF THE UNITED STATES.
of the Court, I am so fully convinced that it was erroneous and prejudicial to the rights, interests and safety of the General Government that I
for one have no hesitation in reviewing* and overruling it. It should be
remembered that this Court at the very term in which, and within a few
weeks after the decision in Hepburn v. Griswold was delivered, when the
vacancies on the bench were filled, determined to hear the question reargued. This fact must necessarily have had the effect of apprising the
country that the decision was not fully acquiesced in, and of obviating
any injurious consequences to the business of the country by its reversal."
Chief Justice Chase pronounced a most elaborate dissenting opinion, in which he again traversed the ground covered
by his opinion in Hepburn v. Griswold, and insisted that the
error of the minority Judges in that case was in urging as a
justification of legal tenders considerations pertinent to the
issue of United States notes.
"The real question," said he, "is, was the making (treasury notes)
a legal tender a necessary means to the execution of the power to borrow money. If the notes would circulate as well without as with this
quality, it is idle to urge the plea of such necessity; but the circulation
of the notes was amply provided for by making them receivable for all
National taxes, all dues to the United States, and all loans. This was
the provision relied upon for the purpose by the Secretary (of the Treasury) when the Bill was first prepared, and his reflections since have convinced him that it was sufficient. Nobody could pay a tax, or any debt,
or buy a bond without using these notes. As the notes, not being immediately redeemable, would undoubtedly be cheaper than coin, they would
be preferred by debtors and purchasers. They would thus, by the universal law of trade, pass into general circulation. As long as they were
maintained by the Government at or near the par value of specie, they
would be accepted in payment of all dues, private as well as public.... Now does making the notes a legal tender increase their value? It
is said that it does, by giving them a new use. The best political economists say that it does not. When the Government compels the people to
receive its notes, it virtually declares that it does not expect them to be
received without compulsion. It practically represents itself insolvent.
ï~~CHASE ON LEGAL TENDER NOTES.
This certainly does not improve the value of its notes. It is an element
of depreciation.... We have no hesitation, therefore, in declaring
our conviction that the making of these notes a legal tender was not a
necessary or proper means to the carrying on of the war, or to the exercise of any express power of the Government."
He insisted further that the law violated an express provision of the Constitution, and the spirit, if not the letter, of
the whole instrument; that, inasmuch as the Fifth Amendment provided that no person should be deprived of life, liberty or property without compensation or due process of law,
the Acts, by operating directly upon the relations of debtor
and creditor, violated that fundamental principle of all just
legislation, that the Legislature should not take the. property
of A and give it to B. "It says that B, who has purchased a
farm of A, for a certain price, may keep the farm without
paying for it, if he will only tender, certain notes which may
bear some proportion to the price, or be even worthless.
It seems to us that this is a manifest violation of this clause
of the Constitution." He also insisted that the acts impaired
the obligation of contracts, and closed his opinion with these
words:
"The present majority of the Court say that legal tender notes
'have become the universal measure of values,' and they hold that the
legislation of Congress substituting such measures for coin by making
the notes a legal tender in payment, is warranted by the Constitution.
But if the plain sense of words, if the contemporaneous exposition of parties,
if common consent in understanding, if the opinions of Courts avail anything in determining the meaning of the Constitution, it seems impossible
to doubt that the power to coin money is a power to establish a uniform
standard of value, and that no other power to establish such a standard
by making notes a legal tender is conferred upon Congress by the Constitution."
ï~~456 THE SUPREME COURT OF THE UNITED STATES.
Mr. Justice Clifford, in his dissenting opinion, entered
into a most elaborate examination of the meaning of the
word "money" in the Constitutional sense, and reviewed all
the Coinage Acts in detail, entering most exhaustively into
a consideration of economic and financial views, and citing
from the writings of famous publicists, both domestic and
foreign.
Mr. Justice Field also dissented in an able opinion,
asserting that it was plain that the policy of maintaining a
fixed and uniform standard could not be carried out, and that
a fixed and uniform metallic standard of value throughout
the United States could not be maintained so long as any
other standard was adopted which of itself had no intrinsic
value and was forever fluctuating and uncertain. He admitted that the measure, the validity of which was called in
question, was passed in the midst of a gigantic rebellion,
when even the bravest heart sometimes doubted the safety of
the Republic, and that the patriotic men who adopted it did
so under the conviction that it would increase the ability of
the Government to obtain funds and supplies, and thus advance the National cause; but he declared that, sitting as a
judicial officer, and bound to compare every law enacted by
Congress with the greater law enacted by the people, and
being unable to reconcile the measure in question with that
fundamental law, he could not hesitate to pronounce it, in
his judgment, unconstitutional and void.
"In the discussions which have attended this subject of legal tender," said he, "there has been at times what seemed to me to be a
covert intimation that opposition to the measure in question was the
expression of a spirit not altogether favorable to the cause in the interest
of which that measure was adopted. All such intimations I repel with
all the energy I can express. I do not yield to any one in honoring
ï~~SLAUGHTER HOUSE CASES.
457
and reverencing the noble and patriotic men who were in the councils
of the Nation during the terrible struggle with the Rebellion. To them
belong the greatest of all glories in our history,-that of having saved
the Union, and that of having emancipated a race. For these results
they will be remembered and honored so long as the English language
is spoken or read among men. But I do not admit that a blind approval of every measure which they may have thought essential to put
down the Rebellion is any evidence of loyalty to the country. The only
loyalty which I can admit consists in obedience to the Constitution and
laws made in pursuance of it. It is only by obedience that affection and
reverence can be shown to a superior having a right to command. So
thought our great Master when he said to his disciples: 'If ye love me,
keep my commandments.' "'
We have dwelt at length upon the features of this great
judicial debate, not only because of its intrinsic interest and
the fundamental character of the question involved, but because it displays in the most convincing manner the talents
of the great jurists who participated in it, and vindicates their
title to, be regarded as among the ablest of the many distinguished men who have illustrated our national jurisprudence.
Another question of profound and lasting importance,
involving the construction of the Thirteenth, Fourteenth and
Fifteenth Amendments, arose in the famous Slaughter House
Cases.2 They grew out of an Act of the Legislature of Louisiana, passed since she had been recognized as a State of the
Union, after the close of the Civil War. The Slaughter
House Company was a corporation created by statute, possessing the exclusive privilege of establishing and maintaining stock-yards and landing-places and slaughter-houses for
the city of New Orleans, in which all stock must be landed,
1 See also Dooly v. Smith, 13 Wallace, 604 (187I). Mr. Justice Field's dissenting
opinion in Bigler v. Waller, r4 Wallace, 297 (1871). Railroad Co. v. Johnson, 15
Wallace, 195 (1872). 2 I16 Wallace, 36 (1872).
ï~~458 THE SUPREME COURT OF THE UNITED STATES.
and all animals intended for food must be slaughtered. Regulations for the maintenance of the slaughter house were
fully and completely detailed, and the corporation was required to provide all the conveniences necessary for that purpose, and restrictions upon the price charged therefor were
stated. The butchers of the city considered this monopoly
an invasion of their personal rights, particularly under the
Amendments, and brought suit to restrain the exercise of
this authority by the Slaughter House Company. The case
finally reached the Supreme Court of the United States, and
was twice argued by Mr. John A. Campbell, formerly an Associate Justice of the Supreme Court, in a manner which excited the utmost admiration for the extraordinary ability,
learning, ingenuity and eloquence displayed. On the other
side appeared Senator Carpenter, of Wisconsin. The opinion
of the Court was delivered by Mr. Justice Miller, putting a
much more limited interpretation upon the Amendments, and
particularly the Thirteenth, than had been expected. It was
asserted that an examination of the history of the causes
which led to the adoption of the Amendments showed that
their main purpose was the freedom of the African race, the
security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly
held them in slavery, and that while the Thirteenth Amendment was intended primarily to abolish African slavery, it
equally forbade Mexican peonage or the Chinese Coolie trade,
when they amounted to slavery or involuntary servitude; that
the use of the word "servitude" was intended to prevent all
forms of involuntary servitude of whatever class or name;
that the first clause of the Fourteenth Amendment was primarily intended to confer citizenship on the Negro race, and
secondly to give a definition of citizenship of the United
ï~~AMENDMENTS XIII, XIV, XV.
459
States and citizenship of the State; that it recognized a distinction between them, and that the second clause protected
from the hostile legislation of the States the privileges and
immunities of the citizens of the United States, as distinguished from the privileges and immunities of the citizens of
the States. From this reasoning the conclusion was somewhat unexpected. It was held that the law in question was
a police regulation for the health and comfort of the people
entirely within the power of the State Legislatures, and unaffected either by the Constitution of the United States previous to the adoption of the Amendments, or since.
From this opinion Mr. Justice Field and Mr. Justice
Bradley dissented in the most energetic terms, holding that
the Amendments were intended for whites as well as blacks;
that they conferred upon all alike, if born in the United States
or naturalized, citizenship of the United States, making that
the primary status of citizenship, and citizenship of the States
only secondary, depending on mere residence; that the privileges and immunities of citizens, which States were forbidden
to abridge, were not merely those arising out of the Constitution itself, such as voting for Representatives, etc., but all
fundamental rights of persons or property usually regarded as
secured in all free countries, as evinced by the subsequent
provision against depriving any person of life, liberty or property without due process of law, or denying to any person the
equal protection of the laws; that amongst these privileges
and immunities was the right of labor, the pursuit of happiness, and following any of the ordinary employments or callings of life, subject to reasonable regulations; that the grant
of a monopoly of one of these employments to a favored few,
to the exclusion of all the rest of the community, was an
abridgement of the rights of the latter, and an abuse of legis
ï~~460 THE SUPREME COURT OF THE UNITED STA TES.
lative authority; and that it was a mere pretence to call the
law in question a police regulation, as it was well known to
be one of those pernicious acts of fraud and oppression by
which irresponsible legislatures robbed and plundered the
Southern people at the close of the Civil War.
The decision of the majority was severely criticised, and
in its defence Mr. Justice Miller, who pronounced the opinion,
and who always referred to it in terms of pride, has said:'
"Although this decision did not meet the approval of four out of
nine of the Judges, on some points on which it rested, yet public sentiment, as found in the Press, and in the universal acquiescence with which
it was received, accepted it with great unanimity, and although there were
intimations that in the legislative branches of the Government the opinion
would be reviewed and criticised unfavorably, yet no such thing has occurred in the fifteen years which have elapsed since it was delivered, and
while the question of the construction of these Amendments, and particularly the Fourteenth, has often been before the Supreme Court of the
United States, no attempt to overrule or disregard this elementary decision
of the effect of the three new Constitutional Amendments upon the relations of the State Governments to the Federal Government has been made;
and it may be considered now as settled that, with the exception of the
specific provisions in them for the protection of the personal rights of the
citizens and people of the United States, and the necessary restrictions
upon the States for that purpose, with the addition of the powers of the
General Government to enforce those provisions, no substantial change
has been made. The necessity of the great powers conceded by the Constitution originally to the Federal Government, and the equal necessity
of the autonomy of the States, and their power to regulate their domestic
affairs, remain as the great features of our complex form of government."
The decision stands as a bulwark of State authority, the
1 See Address delivered before the Alumni of the Law Department of Michigan
on the "Supreme Court of the United States" at the Semi-Centennial Celebration
of the University, June 29, 1887.
ï~~1
ï~~[r\ 138
ï~~WILLIAM STRONG.
461
most important and substantial of those erected since the days
of Taney.'
During the period of the decisions which have been reviewed in this chapter, several changes took place upon the
bench, which it is proper to notice. William Strong of
Pennsylvania, was commissioned as an Associate Justice upon
the 18th of February, 1870. In writing to President Grant
he said, "You have done me great honor. I shall ever
gratefully remember your kindness. A seat in the Supreme
Court would satisfy all my ambition, except ambition to discharge its duties well."
His grandfather, Adonijah Strong, was a lawyer, and
served in the Revolutionary Army as Commissary General.
His father, the Rev. William L. Strong, was a Congregational
minister. The future Associate Justice was born at Somers,
Tolland County, Connecticut, upon the 6th of May, 18o8,
and was the eldest of eleven children. He was educated at
the Plainfield Academy, graduated from Yale in 1828, and
while teaching school in Burlington, N. J., studied law under
1 Mr. John S. Wise, of Virginia, has expressed himself in the following glowing terms: "I said that we owed more to the American lawyer than to the American soldier, and I repeat it; for not all the victories of Grant, or all the marches
of Sherman, have by brute force done as much to bulwark this people with the
inestimable blessings of Constitutional liberty as that one decision of the Supreme
Court in the Slaughter House Cases, declaring what of their ancient liberties remained. That decision, worthy to live through all time for its masterly exposition
of what the war did and did not accomplish, did more than all the battles of
the Union to bring order out of chaos.... When war had ceased, when
blood was stanched, when the victor stood above his vanquished foe with drawn
sword, the Supreme Court of this Nation, when it spoke in the great decision of
the Slaughter House Cases, planted its foot and said, 'This victory is not an
annihilation of State Sovereignty, but a just interpretation of Federal power."
Speech of Mr. Wise in reply to the toast "The American Lawyer," at the Breakfast to the Justices of the Supreme Court of the United States by the Bar of
Philadelphia, September 15th, 1887.
ï~~462 THE SUPREME COURT OF THE UNITED STATES.
Garrett D. Wall as a preceptor, completing his legal studies
by a six months' course in the Yale Law School. Having
determined to practice law in Pennsylvania, he was admitted
to the Bar in that State in 1832, and settled at Reading,
acquiring the German language, which he spoke with fluency,
and soon took high rank as a lawyer. In 1846 he became a
candidate for Congress, and was twice elected on the Democratic ticket, serving from 1847 to 1851. During his second
term, he was appointed chairman of the Committee on Elections. Declining a third nomination, he retired from active
participation in politics, but upon the outbreak of the Civil
War, though then occupying high judicial station, gave all
his support and influence in aid of the Government. In 1857
he was elected an Associate Justice of the Supreme Court of
Pennsylvania, and filled that high office for the term of eleven
years. Attaining distinguished prominence as an able and
upright judge, his opinions on all questions of law, but particularly those affecting real estate, the interpretation of wills,
and the duties and liabilities of trustees, are highly valued.
Clear, precise, and vigorous in style, accurate in his application of principles and of abundant and varied learning, he
ranked among the foremost jurists of the State.
In 1868 he resigned his seat upon the bench, and opened
an office in Philadelphia, acquiring almost immediately a
large and lucrative practice. Two years later, he was appointed an Associate Justice of the Supreme Court. It is
not generally known that President Lincoln had selected him
for the vacancy created by the death of Chief Justice Taney,
but was obliged to forego his personal preferences to parry
the Presidential aspirations of Mr. Chase.
Careful in the investigation of facts, discriminating nicely
in the application of principles, of sound judgment as a critic,
ï~~WILLIAM STRONG.
468
candid in consultation, making suggestions which were always
worthy of attention, but never gave offence, Mr. Justice
Strong became a leader in the highest tribunal of the Nation
and a firm supporter of the dignity and authority of the Court.
Of his opinions, those on the Captured and Abandoned
Property Act,' in the Legal Tender cases,2 the State Freight
Tax case,3 the Confiscation cases,4 the Civil Rights cases,5
and particularly the case of Tennessee v. Davis,6 exhibit, in
a high degree, remarkable power of analysis, logical arrangement of matter, and eloquence of statement. He owed much,
he was often heard to say, to a familiar acquaintance with
the works of John Locke. Upon certain questions his convictions were so strong, stubborn in fact, as to amount to
what his critics pronounced to be prejudices, while his friends
admired the boldness of his views, and the tenacity with
which he adhered to them. He was a member of the Electoral Commission, and his opinion sustained that of the
majority of the Court, holding that Congress had no power
to canvass.a State election for Presidential Electors.
Under the provisions of the Revised Statutes, he resigned the office of Associate Justice in 188o, in the full
maturity of his great powers " with his natural force unabated." The Bar of the Supreme Court expressed their cordial recognition of his profound learning, ripe wisdom, sincere
anxiety to do justice, rigid impartiality, absolute independence,
and unfailing courtesy and patience, while his associates on
the bench bore willing witness to his purity of character as
a' man, and his eminent ability as a Judge.
1 Bigelow v. Forrest, 9 Wallace 339 (I869).
2 Knox v. Lee, Parker v. Davis, 12 Wallace, 457 (I87o).
S815 Wallace, 232 (1872). *7 Wallace, 454 (1868).
5 109 U. S., 3 (1883).
6 Ioo U. S., 257 (1879).
ï~~464 THE SUPREME COURT OF THE UNITED STATES.
Besides his official and professional labors, he has taken
an active part in the councils of the Presbyterian Church, of
which he is a distinguished member. For many years he
was President of the American Tract Society and the American Sunday School Union, and a warm supporter of benevolent enterprises. He has delivered many public addresses,
and contributed to magazines and reviews. In 1875 he pronounced before the Philadelphia Bar and the American Philosophical Society, of which he was a member, a discourse upon
the "Life and Character of Horace Binney," and in 1879 delivered before the Law Department of the University of Pennsylvania, an address upon the " Growth and Modifications of
Private Civil Law." He delivered also a course of lectures to
the professors and students of the Union Theological Seminary
of New York, upon the "Relations of Civil Law to Church
Polity," and for several years, lectures in the Law Department of the Columbian University at Washington. In 1881
he contributed to the North American Review an important
article upon " The Needs of the Supreme Court," in which he
discussed the various plans suggested for its relief from an
undue pressure and accumulation of business, arguing in
favor of that which, in its main features, has been recently
adopted by Congress. Lafayette College in 1867, and Yale
and Princeton in 1870 conferred upon him the degree of
LL.D.
Joseph P. Bradley was born at Berne, Albany County,
New York, on the 14th of March, 1813. He is the sixth in
descent from Francis Bradley, an English emigrant who came
to this country in 1645, and settled in Fairfield, Connecticut,
in 166o, his descendants removing, in 1791, to Berne. His
great-grandfather fought for American Independence, and his
grandfather was one of the heroes of the war of 1812, both
ï~~r
s "....
"..... w,, =...,
-s;'".
I -
ï~~
ï~~JOSEPH P. BRADLEY.
465
living to a great age. His father, Philo Bradley, though
brought up to farm work, was fond of books and reading,
and occasionally taught school. His mother, Mercy Gardner, came of Rhode Island stock, and displayed a genius for
mathematical calculations. They were married at seventeen
years of age, and Joseph was the eldest of eleven children.
His early years were spent most industriously upon the farm,
which produced all articles of food and clothing-sugar from
the forest, flax from the field, and wool from the flock. Later
in life the Judge has been heard to say: "I still preserve the
family spinning-wheel and loom as my best title to hereditary
respectability." He attended the country school for four
months in each year, his favorite study being mathematics,
in which, though almost self-taught, he became so proficient
as to be able, while yet a mere boy, to practice surveying.
At the age of sixteen he became a teacher, and pursued this
vocation until his twenty-first year. His general reading was
extensive, and his thirst for knowledge slakeless. He enjoyed the advantage of being prepared by the village clergyman, and entered Rutgers College, New Jersey, in September,
1833, from which he graduated with high honors three years
later with such distinguished classmates as the late Secretary
of State Frelinghuysen, Cortlandt Parker and Governor W.
A. Newell. At one time he had formed plans for entering
the ministry, but these were abandoned, and he became the
principal of a classical school, at the same time pursuing the
study of the law in the office of Archer Gifford, Esq., of
Newark. During this time he was a frequent contributor to
the newspapers of articles upon topics of current interest, and
in after life he exerted his talents for speaking and writing,
delivering many addresses upon historical, political and scientific subjects before colleges and learned bodies. He also con30
ï~~466 THE SUPREME COURT OF THE UNITED STA TES.
tributed valuable articles to encyclopedias, and carried on an
extensive correspondence with men of science.
In 1840 he was admitted to the bar, and for thirty years
was engaged in active practice, conducting the most difficult
and important cases in both the Federal and State courts,
embracing land, commercial, patent and corporation law, as
well as questions involving life and liberty. His advice was
frequently sought in business transactions. For many years
he was actuary of a leading life insurance company, and a
director in a savings fund; also a director, as well as the leading counsel of the great railroad corporations of his State.
At the December Term, 186o, he argued his first case in
the Supreme Court of the United States, contending with
success that unless Congress has passed an act to the contrary, a State may authorize a drawbridge to be constructed
over a navigable river, a point frequently affirmed since then
without dissent.
At the outbreak of the Rebellion he devoted his eloquent
voice and pen to the cause of the Union, neglecting the calls
of business and the engagements of the court-room to summon the people of his State to rise, not as partisans, but as
Americans "in support of the Constitution and the Government until its authority is vindicated forever." He also exerted himself most strenuously in aiding the railroads, his
clients, in forwarding armies and munitions of war to the
scene of conflict. Although inclining but little towards political life, originally a Whig and later a Republican, he accepted
a nomination for Congress in 1862, but without hope of election, as the district was largely opposed to him in politics.
In 1868 he headed the State Electoral ticket for Grant.
In 1870 two vacancies existed in the Supreme Court of
the United States, which were filled as we have already stated
ï~~JOSEPH P. BRADLEY.
467
by the appointment and confirmation of Mr. Bradley and Mr.
Strong. The commission of Mr. Justice Bradley was dated the
2 ist of March, 1870. He was assigned to the Fifth Circuit,
which embraced the Gulf States from Georgia to Texas. For
several years more Federal questions arose in this Circuit than
in any other, and in settling them, Judge Bradley rendered
many important decisions. During this time he added much
to his already considerable knowledge of the Civil law, displaying in his opinions, most notably in the Mormon Church
case, the richness, variety and solidity of his attainments.
Ten years later, upon the resignation of his associate, Mr.
Justice Strong, he was assigned to the Third Circuit, to which
he has ever since remained attached.
It may be said of his judicial work that in generalizing
broadly, and yet analyzing minutely, no small or important
fact or reason has escaped his vigilance, nor have details been
suffered to obscure the principles of justice. His opinions are
marked by great breadth of learning, which enables him to
draw from the laws of nations of Continental Europe those
fundamental principles of right which are applicable to all
systems of government, while he carefully abstains from overstepping the limits of Constitutional power. His views
upon maritime law, and cases requiring statutory or Constitutional construction, as well as those relating to Civil rights
and habeas corpus, are valued as substantial contributions to the
science of jurisprudence. His opinions in patent causes are
particularly important. His style is powerful and accurate,
yet smooth and flowing.
In 1877 he served as a member of the Electoral Commission, sustaining the conclusions of the majority, taking his
position after careful study of the facts, and supporting it by
elaborate argument. As a scholar, his attainments cover an
ï~~468 THE SUPREME COURT OF THE UNITED STATES.
unusually wide range of the domain of human knowledge.
Of a high order of ability and unflagging application, zealous
in his devotion to truth, he has become equally strong and
learned in several of the great divisions of scholarship, remaining throughout life a devotee to mathematics and the natural
sciences, and amusing himself by calculating eclipses, studying the transit of Venus, and making calendars for determining on sight the day of the week of any date for forty centuries, and the time of new moon in any month of any century past or future, and other abstruse calculations. His linguistic acquirements are also considerable, but he has made
all branches of learning tributary to the law, and has been
styled by a competent critic "an old-fashioned jurist." The
degree of LL.D. was conferred upon him in 1859 by Lafayette
College. In 1865 he made an extended visit to Europe, and
a short excursion there in 1869.1
Upon the 28th of November, 1872, Mr. Justice Nelson, at
the age of eighty years, retired from his position in the
Supreme Court to his home at Cooperstown. Ward Hunt,
of New York, was commissioned in his place upon the I1 ith
of December, of that year.
Mr. Hunt was born in Utica on the 14th of June, 181io,
and was the son of Montgomery Hunt, long the cashier of
the old Bank of Utica, and a much respected citizen. After a
preparatory course at the Oxford and Geneva Academies, at
both of which he had Horatio Seymour as a classmate, he
entered Union College and graduated in 1828, with high
honors. He attended the law school at Litchfield, Conn., then
under the direction of James Gould, a distinguished judge
' A list of the most important opinions delivered by Mr. Justice Bradley is to be
found in the biographical sketch relating to him, published in the Indexed Digest
of the Lawyers' Co-operative Company.
ï~~
ï~~"
ï~~WARD HUNT.
469
and the author of a Treatise on the Principles of Pleading.
Returning to his native town he entered the office of
Hiram Denio, a lawyer of high rank, and afterwards one of
the most distinguished of jurists. Mr. Hunt was admitted to
the bar in 1831, but breaking down in health, spent the winter
in New Orleans. Upon his return he formed a copartnership
with his preceptor, and soon won his way to a lucrative practice and the confidence of numerous clients. In 1839 he
served as a member of the New York Legislature, but took
little active part in politics, devoting himself chiefly to jurisprudence. In 1844 he was elected Mayor of his native town
and shortly afterwards became a candidate for the Supreme
Court of the State, but failed because of the hostility of the
Irish voters, aroused by his successful defence of a policeman
charged with the murder of an Irishman. In early life he was
a Jacksonian Democrat, and as such had been elected to the
Assembly, but became a Free Soiler and an active partisan of
Mr. Van Buren in his canvass for re-election to the Presidency.
In 1853 he again failed of election to the Supreme Court.
Upon the outbreak of the Civil War he joined the Republican
Party and gave it zealous support. In I865 he became a
candidate for the Court of Appeals and was elected by an
overwhelming majority. A few years after, he became,
under the amended Constitution of the State, a member
of the Commission of Appeals, a position which he held
at the time of his promotion to the highest Court of the
Union.
It has been said of him that while neither a Marshall in
intellect, nor a Kent in legal knowledge, he had great judicial
ability. Shortly after taking his seat he failed in health and
for several years was unable to discharge the duties of his
position, but by a special act of Congress was enabled to retire
ï~~470 THE SUPREME COURT OF THE UNITED STATES.
from service upon full salary. His farewell to the bench and
the letter addressed to him by his colleagues are touching and
pathetic incidents in the history of the Court, his written reply
indicating both in spelling and in grammar, the serious inroads upon his mental faculties by disease.
But few opinions were delivered by him, but the chief of
these, Upton v. Tribilcock,1 in which it was held that the
original holder of stock in a corporation was liable for unpaid
instalments without an express promise, the capital stock of a
corporation being a trust fund for the benefit of its creditors,
and Reckendorfer v. Faber,2 in which he elaborately reviewed
the cases relating to patents, are indicative of his care and
accuracy in the statement of facts and the application of legal
principles.
'91 U. S., 45 (1875).
292 U. S., 347 (1875).
ï~~DEATH OF CHASE.
471
CHAPTER XIX.
SEVENTH EPOCH CONTINUED: 1874 TO 1888: DEATH OF CHIEF JUSTICE CHASE: APPOINTMENT OF MORRISON R. WAITE AS HIS SUCCESSOR: GENERAL CHARACTER
OF CASES CONSIDERED AT THIS TIME: SKETCHES OF CHIEF JUSTICE WAITE AND
ASSOCIATE JUSTICES HARLAN, WOODS AND MATTHEWS: LEADING CASES IN
CONSTRUCTION OF THE THIRTEENTH, FOURTEENTH AND FIFTEENTH AMENDMENTS: THE RIGHT OF SUFFRAGE: THE ENFORCEMENT ACT: RIGHTS OF
COLORED MEN TO SERVE AS JURORS: CASES RELATING TO ELECTIONS: DUE
PROCESS OF LAW: CIVIL RIGHTS CASES: MORMON POLYGAMY AND BIGAMY A
PUNISHABLE CRIME: THE REMOVAL CASES: TENNESSEE V. DAVIS: JUILLARD V.
GREENMAN: THE ZENITH OF FEDERALISM: POWER OF CONGRESS TO RE-ISSUE
PAPER AS A LEGAL TENDER IN TIME OF PEACE: KILBOURN v. THOMPSON:
RIGHT OF THE HOUSE OF REPRESENTATIVES TO PUNISH FOR CONTEMPT: CIVIL
SERVICE: THE ELEVENTH AMENDMENT: LOUISIANA V. JUMEL: VIRGINIA COUPON CASES: INDIAN TRIBES THE WARDS OF THE NATION: EXCLUSION OF THE
CHINESE: THE KANSAS LIQUOR LAw: THE CHICAGO ANARCHISTS: INTERSTATE
COMMERCE: THE TELEGRAPH AN INSYRUMENT OF COMMERCE: POLICE REGULATIONS: THE GRANGER CASES: MISCELLANEOUS CASES: LOUISIANA LOTTERY: TELEPHONE CASES: SKETCHES OF ASSOCIATE JUSTICES GRAY, BLATCHFORD AND LAMAR.
THE death of Chief Justice Chase, which occurred upon
the 7th of May, 1873, was not an unexpected event.
For many months he had been sinking slowly beneath the deadly pressure of the effects of overwork,-a cause
similar to that which had deprived him of the services, as a
judicial associate, of his old colleague in the Cabinet, Mr.
Stanton. As a Judge, he had displayed much greater moderation of temper, in considering questions involving the character and extent of the powers of the National Government,
than had been expected of one who had been foremost among
the mightiest combatants for the Nation's existence. The
serene and elevated atmosphere of the bench had cooled his
blood, and he sat in dignified calmness reviewing his own
acts, and fearlessly pronounced them to be in his judgment
ï~~472 THE SUPREME COURT OF THE UNITED STATES.
mere expedients of war, justified by a strange and terrible
emergency, but lacking the essential features of Constitutionality when brought to the final test of the supreme law.
The President offered the vacant chair to Roscoe Conkling, who declined it. The names of George H. Williams,
Attorney General, and of Caleb Cushing, an ex-Attorney
General of the United States, were then sent to the Senate;
but both failed of confirmation. Morrison R. Waite, of Ohio,
was then chosen, and was almost immediately and unanimously confirmed, his commission being dated the 2ist day
of January, 1874.
Some of the most important questions ever determined
by the Court were to come before him for adjudication: the
Constitutionality of the Enforcement Act; the interpretation
of the latest Amendments; the right and power of the States
to control and regulate the charges of railroads; the extending necessities of interstate commerce; the death struggle
with polygamy; Federal control over elections; the power of
the President to remove from office; the Virginia Land Cases;
the distribution of the funds arising from the French Spoliation and the Alabama Claims; the power of Congress under
the Legal Tender Acts in time of peace; the Virginia Coupon Tax Cases; the power of States to prohibit the liquor
traffic; the repudiation of State debts, and the true meaning
of the Eleventh Amendment; the questions arising out of
the violence of the Chicago Anarchists, and the exclusion of
the Chinese. These are the most remarkable of the matters
debated before him, and among the most memorable in the
jurisprudence of the Nation.
The new Chief Justice was a man almost unknown to
the country. His reputation as a sound, sensible and wellinformed lawyer, clear and precise in statement, exact in de
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I
ï~~
ï~~MORRISON R. WAITE.
473
monstration and unblemished in character, had never overstepped the limits of his State until he made his argument
before the International Tribunal of Arbitration at Geneva,
two years before his promotion to the Bench; but it was not
many years before he displayed beneath the concentrated gaze
of the nation the mental vigor and moral sturdiness which
were the most conspicuous of his ancestral traits. Sprung
from a rugged stock, with a touch of iron in the blood, he
traced his descent from that Thomas Waite who boldly signed
his name to the death warrant of Charles I, and whose son
came to Massachusetts with Sir Harry Vane. The stern
qualities of the regicide, though softened, were not lost by
his descendants. The father of the Chief Justice, Henry
Mattson Waite, was a well-known and highly-respected jurist,
who had served as a member of the State Legislature and
State Senate, as a Judge of the Supreme Court of Errors in
Connecticut, and also as Chief Justice of the State.
Morrison Remick Waite was born at Lyme, Connecticut,
on the 29th of November, 1816. He graduated from Yale
in the year 1837, at the age of twenty-two, numbering
among his class-mates William M. Evarts, Benjamin Silliman
and Samuel J. Tilden. During the following year he read
law in the office of his father, traveled extensively, and then,
with the boldness of the pioneer, removed to Ohio, where he
completed his legal studies with Samuel M. Younge, in Maumee City. In 1839 he was admitted to the Bar, and formed
a partnership with his preceptor, proving himself capable of
grasping the minute details of legal controversy and of applying the principles of legal science to facts as they arose.
Although devoting himself with singular fidelity to his profession, "the pupil of patient merit rather than the disciple
of ambition," nothing of special importance occurred to dis
ï~~474 THE SUPREME COURT OF THE UNITED STATES
tinguish his practice, which grew steadily from year to year.
In 1850 he removed to Toledo, and there established a law
firm, of which his youngest brother, Richard, became a partner. In the mean time the elder brother became widely
known for his successful management of difficult cases, his
studious habits and uprightness of character. Although devoid of brilliant talents, he had many opportunities of entering public life, all of which he declined; but he became, in
a certain sense, the recognized leader of the Ohio Bar,-a
position which he maintained for more than thirty years.
Originally an admirer of Henry Clay and a Whig in
politics, when that party disbanded he became a Republican,
and was a strong supporter of the policy of Mr. Lincoln's
administration. Although urged to accept a nomination for
Congress, he declined, and also twice refused a seat upon the
Supreme Bench of Ohio. The only office he had held was
in 1849, when he served a single term as a member of the
Legislature. Simple in his habits, modest, unpretending and
studious, a plain but strong man, a solid and substantial
Common-law lawyer, bred of Common-law ancestors, he first
became known to the Nation when selected by President
Grant, in 1871, to represent the United States at Geneva
before the Tribunal of Arbitration of the Alabama Claims,
under the terms of the Treaty of Washington. Notwithstanding the distinguished reputations of his colleagues, Caleb
Cushing and William M. Evarts, his argument in reply to
Sir Roundell Palmer, establishing the liability of the English
Government for permitting the Confederate cruisers to be
supplied with coal in British ports during the Civil War,
attracted wide-spread attention for its clear, forcible and succinct presentation of the facts and the robust and direct logic
by which he carried conviction upon all points. Upon his
ï~~MORRISON R. WAITE.
475
return, he quietly resumed his practice, and in 1873 was
sent by both political parties as a delegate to the Ohio Constitutional Convention, of which he was immediately chosen
President. From this station he was unexpectedly summoned
to be the Chief Justice of the Nation.
He more than satisfied expectation. Â~ His remarkable administrative ability, his steadfast fidelity to legal truth, his
sagacity and wisdom, his careful observance of all matters
necessary to the successful conduct of his office, his dignity
and firmness, his attention to arguments, his habit of viewing
all questions in the clear dry light of reason, his promptness
in the dispatch of business, and his inflexible integrity, not
only won the respect, but commanded the confidence of the
country. His personal appearance harmonized with his intellectual and moral endowments. A short, compact, but robust
figure, a massive head set squarely upon shoulders of unusual
breadth, a mouth unyielding in its outlines, an eye determined in its glance, yet kindly in its light, a voice rich and
deep, a step deliberate but firm-these fairly indicated the
character of the man.
His judicial style was clear and terse, and some of his
most celebrated judgments are remarkable for vigor and brevity. Indulging but little in illustration or ornament, with no
trace of passion save when his soul burned with righteous
anger over the crime of polygamy, he worked out his results
with calmness, and sustained his conclusions with abundant
and convincing reasons.
In 1876 he refused to be a candidate for the Presidency,
and in the following year declined to serve as a member of
the Electoral Commission. At the time of his death he was
one of the Peabody Trustees of Southern Education, and had
been an earnest advocate of Congressional aid to schools for
ï~~476 THE SUPREME COURT OF THE UNITED STATES.
the education of Southern negroes. He visited Europe in the
summer of 1887, was entertained by Lord Chief Justice Coleridge, and in London was the guest of Lord Bramwell, Lord
Fitzgerald, and Baron Huddleston. The London Law Times
expressed the universal regret that the English Bar had been
unable to give so high and honored a personage an official
welcome, but as he visited London in the middle of the long
vacation, a public ceremony in the Temple was impracticable.
His visit, like that of his predecessor Ellsworth, impressed
those whom he met with the simplicity of character but
rugged strength of an American Chief Justice.
So temperately, judiciously and firmly did he discharge
his official duties at a trying period in a region still agitated
by the throes of war, that after his death the members of the
Bar of South Carolina, assembled at Circuit, expressed their
sense of his impartiality during the days of Reconstruction,
and of his friendliness of manner. " Fortunate indeed," said
one, "that there was a man who, amidst the furious passions
that rent the country and shook the land, could hold in his
steady and equal hand the balance of justice undisturbed."
At Circuit his manners were dignified, graceful and winning, but unassuming. Though genial, his bearing commanded respect, and his private character was pure and noble.
As a presiding officer he was a model of deportment, and exceedingly urbane. No disorder or levity was ever attempted
in his presence. Yale College conferred upon him the degree
of LL.D. in 1872, Kenyon College in 1874, and the University
of Ohio in 1879.
John Marshall Harlan, of Kentucky, who bears the name
of the great Chief Justice whose principles he has warmly espoused, was commissioned as an Associate Justice upon the
29th of November, 1877, in place of Mr. Justice Davis, who
ï~~
ï~~% /l~
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40
ï~~JOHN MARSHALL HARLAN.
477
had resigned. He was born on the first day of June, 1833,
in Boyle County, Kentucky; received an academic education,
was graduated from Centre College in that State, in 1850,
and prepared for the bar in the Law Department of Transylvania University, where he had the benefit of instruction under
two of Kentucky's greatest Chief Justices-Robertson and
Marshall. His father, James Harlan, had been a distinguished
member of Congress and Attorney-General of his State, accepting in 1862, at the special request of President Lincoln,
the office of United States Attorney for the Kentucky District,
and holding that position until his death. He was a lawyer
of distinction and a leading member of the Bar of his State,
living at Frankfort, the State Capital, where he enjoyed a
large practice in the Court of Appeals. The son studied and
practiced with his father, and was thus brought into familiar
intercourse with all the judges and lawyers of note. Admitted
to the bar in 1853, five years later he was elected Judge of
the Franklin County Court, but held the office but a single
year. In 1859 he was nominated as the candidate of the
Whig or opposition party for Congress in the "Ashland District," recently represented by John C. Breckinridge and James
B. Clay, and was defeated by only sixty-seven votes. In the
Presidential contest of 186o he was an Elector on the Bell
and Everett ticket, and in the Spring of i86i moved to Louisville, where he became a law partner of the Hon. W. F.
Bullock.
When the Civil War broke out he unhesitatingly took
an active part in support of the National Government at a
time when the loyalty of his State was doubted by many and
the action of every citizen was of moment. He organized and
became colonel of the Tenth Kentucky Volunteer Infantry,
one of the regiments constituting the original division of Gen
ï~~478 THE SUPREME COURT OF THE UNITED STATES.
eral George H. Thomas, remaining in active service in the
field until the death of his father required his presence at
home. Although nominated to the office of Brigadier-General,
he was obliged for private reasons to tender his resignation
and return to civil life. In 1863 he was elected to the office
of Attorney-General, removing his residence to the capital of
the State, and in 1867 returned to active practice in the city
of Louisville. He took a prominent station in the councils of
the Republican Party, and in 1871, against his personal inclinations, accepted a unanimous nomination for the office of
Governor. Although defeated he received a vote which showed
a large increase over the Republican vote of former years.
In 1872 at the State Republican Convention, his name was
presented to the National Republican Convention in connection
with the Vice-Presidency. In 1875 he was again compelled to
accept the nomination of his party for Governor, and after a
thorough and vigorous canvass increased the Republican vote
of the State.
Although it was expected that he would become AttorneyGeneral in the Cabinet of President Hayes, political complications in other States required a different arrangement, and at
a later day he was offered a foreign mission, which he declined, preferring not to hold any office disconnected from his
profession. He served as a member of the Louisiana Commission in 1877, and in November of the same year, was commissioned as an Associate Justice of the Supreme Court.
At the time he took his seat he was but forty-four years
old. But seven other Justices had ascended that bench at an
earlier age-Curtis, Campbell and Todd, at the age of fortytwo; Iredell, at thirty-nine; Washington, at thirty-six; William
Johnson at thirty-three, and Story at thirty-two. while Jay and
McLean were of the same age as Harlan.
ï~~JOHN MARSHALL HARLAN. 4
479
In the prime of physical and mental manhood and enthusiastically interested in the discharge of his duties, he bent
all his energies to the great work before him, and his judicial
reputation has grown from year to year. Careful in preparation, lucid and forcible in style, selecting his words with scrupulous care and disposing of the cases before him with promptness and decision, he has taken high rank as a jurist. A
careful student of the science of government and the history
of the growth of free institutions, he was called upon to fill
the chair of Constitutional Law in the Columbian University
of the City of Washington, and quite recently his course of
lectures has been so enlarged as to embrace Public and
Private International Law.
Upon Constitutional questions he adheres closely to the
(
doctrines of Marshall in support of National authority, and
some of his most vigorous opinions have been those dissenting
from the construction placed by the majority of the Court
upon the Thirteenth, Fourteenth and Fifteenth Amendments,
all of them marked by a strong individuality of style.
The most noticeable expression of his views is to be
found in his dissenting opinion in the Civil Rights cases, in
which he maintained that the deprivation of the rights
involved was an incident of slavery, and that power was,
therefore, given to Congress under the Thirteenth Amendment by appropriate legislation to secure all citizens against
such deprivation on account of a previous condition of servitude. He further pointed out that while the second and
third clauses of the Fourteenth Amendment were, in form,
prohibitions against actions by the States which might operate as a denial of equal rights, immunities and privileges to
any of the citizens of the United States, yet the first clause
did not refer solely to action by the States, but directly
ï~~480 THE SUPREME COURT OF THE UNITED STA TES.
secured such rights to black citizens, and thus empowered
Congress to pass laws acting directly upon and in favor of
such citizens. This opinion he pronounced without note or
memorandum, subsequently enlarged and reduced to writing.
Ardently attached to freedom and free institutions, and anxious that they might be preserved intact, he has exhibited in
every opinion involving private rights an intense desire to
wipe away technicalities which stand in the way of reaching
substantial equity and justice.
Upon the resignation of Mr. Justice Strong, William B.
Woods, of Georgia, was commissioned as an Associate Justice
on the 21st of December, 1i88o. He was born at Newark,
Licking County, Kentucky, on the 3d of August, 1824. His
father, Ezekiel Woods, of Scotch-Irish parentage, was a native
of Kentucky, and his mother was of New England blood.
He was educated at Western Reserve College, at Hudson,
where he was a classmate of George F. Hoadley, and was
subsequently sent to Yale, from which he graduated, in 1845,
with distinction. He then studied law in his native town
under Hon. S. D. King, and practiced there, forming a copartnership with his preceptor, to whose careful teaching and conscientious example, he states, he owed his subsequent success
in life. In politics he was a prominent Whig, and later became
a leader in the Democratic party. In 1856 he was chosen
Mayor of his native town, and in the following year was sent
to the State Legislature, serving as Speaker of the House
with the reputation of being the best of presiding officers, and
securing a re-election. Upon the outbreak of the Civil War
he entered the army as Lieutenant Colonel of the SeventySixth Ohio Regiment of Volunteers, and until the end of the
war, with the exception of three months, was constantly
engaged in the field. He participated in the battles of Shi
ï~~
ï~~
ï~~WILLIAM B. WOODS.
481
loh, Chickasaw, Bayou Ridge, Arkansas Post, where he was
slightly wounded, and at Resaca, Dallas, Atlanta, Jonesville,
Lovejoy Station and Danville. He was present also at the
sieges of Vicksburg and Jackson, and commanded a division
in General Sherman's army during its march to the sea. He
was appointed Brevet Brigadier-General of Volunteers on the
12th of January, 1865, and Brevet Major-General on the 31st
of May of the same year, and was mustered out of service
in 1866.
Upon leaving the army he went to Alabama, where
he engaged in cotton-planting, and also resumed his law
practice, taking an active part in the reconstruction of the
State, of which he was appointed Chancellor in 1868. The
duties of this office he discharged to the satisfaction of the
public, and resigned it because of his appointment by President Grant as United States Circuit Court Judge for the Fifth
Circuit, at that time including Georgia, Florida, Alabama,
Louisiana, Texas and Mississippi, a post which he held at
the time of his promotion to the Supreme Bench by President Hayes. His decisions as a Circuit Judge are reported
by himself, in four volumes. His judicial service in the Supreme Court was but little more than six years, but during
that time he delivered opinions which sustained the reputation
which he had acquired at Circuit, as a painstaking and
sensible Judge, of unflagging industry and of saving common
sense. His knowledge and experience in relation to the laws
of the Southern States were of especial service to the Court
in deciding cases arising in that part of the Union.
Some idea of the increase in the business of the Supreme
Court can be formed from the statement that during the six
years that he was upon the bench, he wrote the opinion of the
Court in 218 cases, while Mr. Justice Curtis, who was upon
31
ï~~482,fHE SUPREME COURT OF THE UNITED STATES.
the bench the same number of years, wrote but fifty-six
opinions in all.
The most elaborate of his efforts are those in the Mormon Bigamy case of Miles v. United States,' the last branch
of the celebrated Myra Clark Gaines controversy,2 and his
demonstration that that portion of the Revised Statutes of the
United States which made it a criminal offence for two or
more persons in a State or Territory to conspire to deprive
any person of the equal protection of the laws of a State
was unconstitutional,3 and his maintenance of the Constitutionality of the military code of Illinois prohibiting unauthorized military organizations, drilling or parades, in which he
showed that the law in question did not violate the Second
Amendment securing to the people the right to keep and bear
arms.4
Upon the retirement of Mr. Justice Swayne, Stanley
Matthews, of Ohio, was duly commissioned an Associate Justice, upon the 12th of May, 1881. Journalist, Lawyer, Judge,
Soldier, Politician, Legislator, and Jurist, in each stage of his
varied career he displayed a powerful will and a vigorous
mind. His father was a professor of mathematics in Transylvania University, at Lexington, Ky., and a ruling Elder in
the Presbyterian church. Mr. Matthews was born in Cincinnati, Ohio, upon the 21st of July, 1824, graduated from Kenyou College in 1840, studied law, was called to the bar, and
settled in Maury County, Tennessee, but shortly after returned to his native city. He was early engaged in the antislavery movements, and was from 1846 to 1849 assistant editor of the Cincinnati Herald, the first daily anti-slavery newspaper in that city. A disciple of Chase, he devoted himself
a 103 U. S., 304 (1880). 3United States v. Harris, io6 U. S. (1882).
SDavis v. Gaines, 104 U. S., 386 (1881i). Presser v. Illinois, 116 U. S., 252 (I885).
ï~~AAL..., -b- -
7J4
ï~~
ï~~STANLEY MAT THE WS.
483
to the cause with impetuous energy. In 1851 he became a
Judge of the Court of Common Pleas of Hanover County,
a State Senator in I855, and from I858 to 1861 served as
United States Attorney for the Southern District of Ohio. In
March of 1861 he was commissioned as Lieutenant-Colonel of
the Twenty-third Ohio Regiment, serving in West Virginia at
the battles of Rich Mountain and Carnifex Ferry. In October of that year, he was appointed Colonel of the Fiftyseventh Ohio, and commanded a brigade in the Army of the
Cumberland, being engaged at Dobb's Ferry, Murfreesboro,
Chickamauga and Lookout Mountain. Resigning from the
Army in 1863, he became a Judge of the Superior Court of
Cincinnati. In 1864 he was a Presidential Elector, an office
which he also held in 1868. At first a Rationalist and later
a Unitarian, he became after serious study, a convert to Calvinism. In 1864 he was a delegate from the Presbytery of
Cincinnati to the General Assembly of the Presbyterian
Church at Newark, N. J., and as one of the Committee on
By-laws, reported the resolutions relating to slavery. In
1876 he was defeated as a Republican candidate for Congress,
and the next year was one of the counsel who argued the
cases of the Republican electors before the Electoral Commission, making the principal argument in the Florida and Oregon cases-an argument which Senator Edmunds declared stood
"almost first among the foremost of the strictly legal and
Constitutional considerations that should have influenced, and,
I think, did influence the judgment of that tribunal." In
March of that year he was elected United States Senator in
place of John Sherman, who had resigned to become Secretary
of the Treasury, and the following year was promoted to the
Supreme Bench.
Although strongly opposed in the Senate, because of the
ï~~484 THE SUPREME COURT OF THE UNITED STATES.
views he was supposed to entertain towards corporations, the
most eminent of his critics, standing by his bier, had the
candor to state that his opinions and his assent to those delivered by other judges upon that class of questions had convinced
him as well as other Senators that they were mistaken in
doubting his judicial capacity and independence. Upright and
candid, a helpful and sympathizing friend to the younger
members of the bar, fair and just in logic, rich in legal learning, clear in statement, gentle in disposition, affable in conduct, patient and attentive, he won, during the seven years of
his judicial service, the respect of his associates, the confidence
of the bar, and gave each year fresh assurance of continued
growth and predominance. His death elicited the most eloquent and affectionate eulogies from political opponents as well
as friends.
His opinions evince research and care, and at times he
dissented most vigorously from the doctrines established by
the judgment of the majority of the Court-the most noticeable instance being in the well-known case of Kring v. Missouri,1 in which he protested against such an extension of the
Constitutional principle forbidding ex post facto laws as would
result in the escape of a convicted murderer, when, as he contended, the substance of the prisoner's defence upon the merits
had not been touched; where no vested legal right under the
law had wrought a result upon his legal condition before its
repeal.
When Chief Justice Waite ascended the bench in 1874,
no graver or more important duties had ever been cast upon
the Court. He and his colleagues were confronted by a
"broken" condition of social, of legal, of political and of public
1 107 U. S., 221 (1882).
ï~~THE POST-BELLUM AMENDMENTS.
485
affairs. Full of pith and meaning was that one word "Reconstruction," which has become a synonym of the period. Everywhere re-arrangement was necessary, the wastes of war were
to be repaired, "the symmetry and strength of judicial predominance over passion" were to be restored and re-established.
It was a period of conservative reaction and the conduct of
the Court reflected that tendency. The circumspect traits of
character of the Chief Justice sustained the impulse imparted
by the decision in the Slaughter House Cases on the lines of
moderation, and resulted in an interpretation of the Thirteenth,
Fourteenth and Fifteenth Amendments which was a surprise
to many statesmen, and a disappointment to those who saw,
or thought they saw, a more comprehensive chart of liberty
sketched in bold outline by men from whose eyes the scales
had fallen in the lurid light of civil war. It was information
that was new to the framers, said Mr. Shellabarger, when
they were told that by those Amendments it was not intended
to add anything to the rights of one citizen as against another;
that it was not designed to enable Congress to legislate affirmatively or directly for the protection of civil rights, but only
to use corrective and restraining measures as against the
States so as to secure to the black race the right to be dealt
with as equals. It was information that was new, as well as
unwelcome, that the provisions creating National citizenship
and prohibiting the abridgment of the privileges thereof, and
prohibiting the States from depriving any person of life, liberty, property, or the equal protection of the laws, and giving
to Congress the power to enforce these provisions by appropriate legislation, added nothing to existing rights, but simply
provided additional guarantees for such as already existed.
But now, after the lapse of years, when the temper and spirit
in which the text of the Amendments was penned have cooled,
ï~~486 THE SUPR E ME COURT OF THE UNITED S TA TES.
and the views of men have matured, it is seen on a survey of
all the decisions considered as a body, that the value of the
Court as the great conservative department of the government
was never greater than then, and that the gratitude and veneration of the Republic in all coming generations will be due
to it for having guided the country in safety through many
perils, and for having fixed its institutions upon high, just
and stable foundations.
The first decision of importance belonging to the class referred to, and one of the earliest delivered by Chief Justice
Waite, involved the meaning of the word " citizen" under the
provisions of the Fourteenth Amendment, and it was held
that although all women are citizens in the sense of being
members of a political community or nation, yet as the Constitution had not added the right of suffrage to the privileges
and immunities of citizenship as they existed at the time it
was adopted, and as the Amendment did not create new rights,
but simply furnished an additional guarantee for the protection of such as were already enjoyed, it followed that the Constitutions and laws of the several States which committed the
important trust of suffrage to men alone, were not necessarily
void.1
This was followed by the case of the United States v.
Reese,' in which an indictment had been found in the District
of Kentucky against two inspectors of e municipal election,
for refusing to receive and count the vote of a colored man.
A demurrer was filed and the question arose whether the Act
of Congress, which declared the right of all citizens to vote
without distinction of race, color, or previous condition of servitude, had provided an adequate punishment for its violation.
1Minor'v. Happersett, 21 Wallace, 162 (1874).
292 U. S., 215 (1875).
ï~~THE RIGHT OF SUFFRAGE.
487
It was shown that the Fifteenth Amendment did not confer
the right of suffrage upon any one, but was simply intended
to prevent the States from giving a preference in this particular to one citizen of the United States over another, and
as Congress had not provided in direct terms for the punishment of the specific offence charged, and as the Act under
consideration was a penal statute, a strict construction must
prevail; the Court could not introduce words of limitation so
as to make that specific which was expressed in general terms
only. Hence the decision of the lower Court sustaining the
demurrer was affirmed.
"It would certainly be dangerous," said the Chief Justice, "if the
legislature could set a net large enough to catch all possible offenders,
and leave it to the Courts to step inside and say who could be rightfully
detained, and who should be set at liberty. This would to some extent
substitute the judicial for the legislative department of the Govemrnment.
The Courts enforce the legislative will when ascertained, if within the Constitutional grant of power. Within its legitimate sphere, Congress is supreme and beyond the control of the Courts; but if it steps outside of
its Constitutional limitation, and attempts that which is beyond its reach,
the Courts are authorized to, and when called upon in due course of legal
proceedings, must annul its encroachments upon the reserved power of the
States and people. To limit this statute in the manner now asked for,
would be to make a new law, not to enforce an old one. This is no
part of our duty."
Mr. Justice Clifford agreed that.the indictment was bad,
but for reasons widely different from those assigned by the
Court, but Mr. Justice Hunt dissented in a most elaborate
opinion.
The Constitutionality of the Enforcement Acts was considered in United States v. Cruikshank,' and it was held that
192 U. S., 542 (1875).
ï~~488 THE SUPREME COURT OF THE UNITED STATES.
while the Fourteenth Amendment prohibited a State from depriving any person of life, liberty or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws, yet this provision did
not add anything to the fundamental rights of the citizen under the Constitution; that the duty of every republican Government to protect all its citizens in the enjoyment of an
equality of rights wa* originally assumed by the States, and
still remained there; and that the only obligation resting
upon the United States was to see that the States did not
deny such rights. This the Amendment guaranteed, but no
more, and the power of the National Government was limited
to the enforcement of this guarantee. Hence on an indictment
in which it did not appear that the intent of the defendants
was to prevent parties from exercising their right to vote on
account of their race, it was held that it did not appear that
it was their intent to interfere with any right granted or secured by the Constitution or laws of the United States, and
that counts in such indictment which did not declare that it
was the intent of the defendants by conspiracy to hinder or
prevent the enjoyment of any right granted or secured by the
Constitution, were insufficient to sustain a conviction.
In this judgment Mr. Justice Clifford concurred, but for
reasons quite different from those stated by the Court.
In Strauder v. The State of West Virginia,' more positive
results were reached. It was held that the Fourteenth Amendment was intended to secure to a recently emancipated race
all the civil rights of the superior race, and to give it the
protection of the General Government in the enjoyment of
such rights when denied by the States. Citizenship and the
1 Ioo U. S. 303 (1879).
ï~~RIGHTS OF COLORED MEN AS JURORS.
489
privileges of citizenship were intended to be protected. No
legislation of a State discriminating against men on account
of color was Constitutional, and therefore a statute of the
State of West Virginia denying to colored citizens the right
to act as jurors because of their color, though qualified in
other respects, was pronounced to be unconstitutional, inasmuch as the State statute secured to every white man the
right of trial by jury selected from and without discrimination against his race, and at the same time discriminated
against the blacks; the latter race, therefore, did not enjoy
the equal protection of the laws. It was not a question, Mr.
Justice Strong pointed out, whether a colored prisoner had a
right to be tried by a petit jury composed in whole or in
part of persons of his own race or color, but whether in the
selection of the jury all persons of his race should be excluded by law because of their color, so that by no possibility
could a colored man sit upon the jury. From this judgment
Justices Field and Clifford dissented.
In the case of Virginia v. Rives1 the Fourteenth Amendment was still further considered, and it was held that it is
a State which is prohibited from denying to any person the
equal protection of the laws. Two colored men had been indicted in a State Court for murder. The case was removed
to the Circuit Court of the United States, and the defendants moved the Court that the venire, which was composed entirely of white men, be,so modified as to allow onethird of the panel to be composed of colored men. It was
held that inasmuch as Virginia, by her statute, had not forbidden colored men to serve as jurors, there was no act by
the State which came in conflict with the provisions of the
1 100 U. S. 313 (1879).
ï~~490 THE SUPREME COURT OF THE UNITED STATES.
Amendment; that that Amendment referred solely to State
action, and could not operate upon any action of private individuals. There must be either a legislative denial or disability resulting from it, and in the absence of these features,
no one could swear, before his case came to trial, that his
civil rights were denied. Mere apprehension was not sufficient. With regard to obstacles to the enjoyment of rights,
arising from other causes than from legislative denial, persons of the colored race must take their chances of removing
them, or proceed against the offenders in the manner open
to the rest of the community. In this judgment Justices
Field and Clifford concurred, but for reasons widely different
from those stated in the opinion of the Court, the former
stating that there could be no assumption by a Federal
Court of jurisdiction of offences against the laws of a State.'
In Ex parle Virginia2 a county judge had been charged
by law with the duty of selecting jurors, and was indicted in
the District Court of the United States for excluding certain
citizens from his choice, in violation of the Act of March I,
1875, intended to enforce the provisions of the Fourteenth
Amendment, being influenced in his conduct, as was alleged,
by a consideration of the race and color of the men excluded. Being in custody, he presented to the Supreme
Court a petition for a writ of habeas corpus and a writ of
IIn Missouri v. Lewis, o101 U. S. 22 (1879) it was held that the Fourteenth
Amendment did not prohibit the State from making political subdivisions of its
territory, regulating its local government, including the constitution of Courts and
their appellate jurisdiction, establishing one system of law in one portion of its
territory, and another system in another, so long as, it did not abridge the rights
and immunities of its citizens. The opinion was delivered by Mr. Justice Bradley,
and sustained the right of the States to limit by statute the jurisdiction of their
Courts, the right of appeal, and to make it exercisable under different circumstances
in different parts of the State. 2 100oo U. S. 339 (1879).
ï~~THE RIGHTS OF COLORED MEN.
491
certiorari to bring up the record. It was held that, while
such a writ could not be made to serve the purpose of a writ
of error, if a prisoner be held without lawful authority, by
an order which an inferior Court of the United States had
no jurisdiction to make, the Supreme Court would, in favor
of liberty, grant the writ, not to review the case, but to examine the authority of the Court below to act. It was also
held that as Congress had enforced the provisions of the
Amendment by appropriate legislation, a State could act by
its judicial authorities as well as through its Legislature;
that the Judge was the agent of the State, and that the
Amendment meant that no agency of the State should be
exerted in the selection of jurors, which was not a judicial
act, and deny to any person the equal protection of the laws
by excluding colored men from the jury. Although the discretion of the Judge could not be coerced, yet inasmuch as
the statute gave him no discretion to reject colored men in
selecting jurors, he was properly indictable. Mr. Justice Field
dissented in a most elaborate opinion, which was concurred
in by Mr. Justice Clifford. They contended that the indictment was defective; that the State statute vested in the Judge
the power of selecting a jury, and, in this selection, he was
to exercise his discretion as to "such persons as he thought
well qualified to serve as jurors," but that the statute itself
made no discrimination against color or race, nor had the
Judge done so; for his mere failure to select colored men
was no sufficient proof of an intent to discriminate. Nor
could Congress exercise a supervisory power over the methods
of State officers in the discharge of their official duties. A
most exhaustive discussion of the nature of our government
and of the relation of the Federal Government to the States
was entered upon, and it was insisted that Congress could
ï~~492 THE SUPREME COURT OF THE UNITED STATES.
not interfere with the administrative functions of the States.
No doctrine could be more destructive of State autonomy or
more humiliating or degrading.
In Ex parte Siebold1 the question was discussed whether
in the regulations of elections for members of Congress the
National and State Governments could or could not co-operate,
or whether their action must be exclusive of each other, so
that if Congress assumed to regulate the subject at all, it
must assume exclusive control. It was held by Mr. Justice
Bradley that there was nothing in the Constitution to prevent such co-operation, and a concurrent jurisdiction was contemplated; that of the State, of course, being subordinate to
that of the United States, but only to the extent to which
Congress had seen fit to interfere.
"It seems to be often overlooked," said he, "that a National Constitution has been adopted in this country, establishing a real Government therein, operating upon persons and territory and things; and
which, moreover, is or should be as dear to every American citizen as
his State Government is. Whenever the true conception of the nature
of this Government is once conceded, no real difficulty will arise in the
just interpretation of its powers. But if we allow ourselves to regard
it as a hostile organization, opposed to the proper sovereignty and dignity of the State Governments, we shall continue to be vexed with
difficulties as to its jurisdiction and authority."
Justices Field and Clifford again dissented, contending
that it was incompetent for the Federal Government to enforce, by coercive measures, the performance of a plain duty,
imposed by Congress upon the executive officer of a State,
and that it would seem to be equally incompetent for it to
enforce, by similar measures, the performance of a duty imposed upon him by a law of a State; that Congress could not
1100oo U. S. 391 (1879).
ï~~JURIES IN DELAWARE.
493
punish for the non-performance of a duty which it could not
prescribe, and that it was a contradiction in terms to say
that it could inflict punishment for disobedience to an act
the performance of which it had no Constitutional power to
command.'
In Neal v. Delaware2 it was held, in an opinion by Mr.
Justice Harlan, that the Constitution of Delaware, which had
been adopted in 1831, and gave the right of suffrage, with a
few special exceptions, to "free white male" citizens, was in
conflict with the Fifteenth Amendment, the effect of which
was to annul so much of the State Constitution as was inconsistent therewith, and that thenceforward the jury statute
was enlarged in its operation so as to render colored citizens,
otherwise qualified, competent to serve as jurors in the State
Courts. From this judgment Chief Justice Waite dissented,
on the ground that the mere fact that persons of color had
not been allowed to serve on juries where colored men were
interested, was not enough to show that the defendants had
been discriminated against because of their race, and that he
could not believe that the refusal of the Court below, upon
an affidavit unsupported by evidence, to quash the indictment
and quash the panel of jurors, because the defendant had
been discriminated against on account of his race, was such
an error in law as to justify a reversal of the judgment.
Mr. Justice Field dissented substantially on the same grounds.
"To afford equality of protection," said he, "to all persons by its
laws, does not require the State to permit all persons to participate
equally in the administration of those laws, or to hold its offices, or to
discharge the trusts of government. Equal protection of the laws of a
State is extended to persons within its jurisdiction, within the meaning
'See also Ex pare Clarke, ioo U. S. 399 (1879).
* 2o103 U. S. 370 (1880).
ï~~494 THE SUPREME COURT OF THE UNITED STATES.
of the Amendment, when its Courts are open to them, on the same
terms as to others, with like rules of evidence and modes of procedure
for the security of their persons and property, the prevention and redress
of wrongs and the'enforcement of contracts; when they are subjected to
no restrictions in the acquisition of property, the enjoyment of personal
liberty and the pursuits of happiness which do not equally affect others;
when they are liable to no other nor greater burdens nor charges than
such as are laid upon others, and when no different nor greater punishment is enforced against them for a violation of the laws."
In a later case 1 Federal control over elections for members of Congress was distinctly sustained, and such control
was not diminished or annulled because an election for State
officers was held at the same time or place. While affirming
the doctrine that the Fifteenth Amendment gave no affirmative right to the black man to vote, but simply prevented discrimination against him whenever the right was granted to
others, yet it was asserted that under some circumstances it
might operate as the immediate source of a right to vote.
Thus in all cases where the States had not removed from
their Constitutions the words "white man" as a qualification
for voting, the provision did have the effect of conferring on
him the right to vote because it annulled the word while, and
thus left him in the enjoyment of the same rights as white
persons. The particular offence charged was that of conspiring to intimidate a black voter, and prevent him by beating
and wounding from voting for a member of Congress.
"If the Government of the United States," said Mr. Justice Miller, " has within its Constitutional domain no authority
1 Ex parle Yarbrough, 110 U. S., 651 (1883). The same principle was sustained
as to a conspiracy to prevent a person from exercising the right to make effectual
his homestead entry, United States v. Waddell, 112 U. S., 76 (1884); and as to a
conspiracy to drive the Chinese from their homes, Baldwin v. Franks, 120 U. S.,
678 (i886).
ï~~DUE PROCESS OF LA W.
495
to provide against these evils, if the very source of power may
be poisoned by corruption or controlled by violence and outrage, without legal restraint, then, indeed, is the country in
danger and its best powers, its highest purposes, the hopes
which it inspires and the love which enshrines it, are at the
mercy of the combinations of those who respect no right but
brute force, on the one hand, and unprincipled corruptionists
on the other."
Another class of rights within the protection of the Fourteenth Amendment was considered in Kennard v. State of
Louisiana,l the Chief Justice showing that an Act of a State,
by which provision had been made for the trial of a case before a Court of competent jurisdiction, by bringing the accused
before the Court, and notifying him of the charge he was required to meet, thus giving him an opportunity to be heard,
and also providing for due deliberation and judgment on the
part of the Court, and for an appeal to the highest Court of
the State, was not in violation of the provisions of the Constitution which prohibited any State from depriving any person of life, liberty or property without due process of law.
And in T'Valker v. Sauvine/2 the question whether a citizen had been deprived of the right of trial by jury was discussed, and it was held that the requirement of the Constitution that a person could not be deprived of his property without due process of law, did not imply that all trials in the
State Courts affecting property must be by jury; that the Constitutional requirement was fully met if the trial was had according to the settled course of judicial proceedings; that due
192 U. S., p. 480 (1875). Affirmed in Foster v. Kansas, 112 U. S., 201 (1884).
2 92 U. S., 9o (1875), affirming Edward v. Elliott, 21 wallace, 557 (1874). See
also Pearson v. Yeudall, 95 U. S., 294 (1877), in which it was held that States
might regulate Jury trials.
ï~~496 THE SUPREME COURT OF THE UNITED STATES.
process of law was process according to the law of the land,
which was subject to regulation by the law of the State, and
inasmuch as the State Court had decided that the proceedings
below were in accordance with the law of the State, it was
not found to be contrary to the Constitution or any law or
treaty of the United States, nor did the Fourteenth Amendment forbid the abridgment of the right of trial by jury in
suits at common law in the State Courts.
In illustration of the doctrines thus established, the Civil
Rizghts Cases were decided. Congress, by an Act passed
March i, 1875, entitled "An act to protect all citizens in
their civil and legal rights," had endeavored to secure to all
persons within the jurisdiction of the United States the full
and equal enjoyment of the accommodations, advantages and
privileges of inns, public conveyances on land or water, theatres and other places of public amusement, subject only to
such conditions and limitations as were established by law,
and were applicable alike to citizens of every race and color,
regardless of any previous condition of servitude. Suitable
penalties were provided for any violation. In delivering the
opinion of the Court, Mr. Justice Bradley declared that it
was the simple purpose of the law to provide that no distinction should be made between citizens of different race or color,
or between those who had, and those who had not, been
slaves, and that its effect was to secure to such persons the
same accommodations and privileges as were enjoyed by
white citizens. But it was State action of a particular character that was prohibited. No individual invasion of rights
was the subject matter of the Fourteenth Amendment, which
did not invest Congress with power to legislate upon subjects
which were within the domain of State legislation, but simply
'1o9 U. S., 3 (1883).
ï~~THE CIVIL RIGHTS CASES.
497
provided modes of relief against State action. It did not authorize Congress to create a code of. municipal law for the
regulation of private rights, but to provide modes of redress
against the operation of State laws and the actions of State
officers, executive or judicial, whenever these were subversive
of fundamental rights. - But until some State law had been
passed, or some State action, through its officers or agents,
had been taken, adverse to the rights of citizens sought to be
protected by the Amendment,* no legislation of the United
States, nor any proceeding under such legislation, could be
called into activity. The civil rights guaranteed by the Constitution against State aggression could not be impaired by
the wrongful acts of individuals unsupported by State authority in the shape of laws, customs or judicial or executive
proceedings. If one individual did a wrong to another the
remedy should be sought in the State tribunals, and until
such right had been denied by State action, no ground for
the interposition of Congress arose. The legislation authorized by the Amendment to be adopted by Congress for enforcing its provisions, was not direct legislation upon the
matters respecting which the States were proscribed from
making or enforcing laws or doing certain acts, but was correcive legislation, such as might be necessary or proper for
counteracting and redressing the effect of such laws or acts.
While the Thirteenth Amendment abolished slavery and
involuntary servitude, and by its reflex action established
universal freedom in the United States, and Congress might
probably pass laws directly enforcing its provisions, yet such
legislative power extended only to the subject of slavery and
its incidents, and the denial of equal accommodations in inns,
public conveyances and places of public amusement, imposed
no badge of servitude incapable of redress in the ordinary
32
ï~~498 THE SUPREME COURT OF THE UNITED STATES.
tribunals. The point that Congress under the commerce
clause might pass a law securing to all persons equal accommodations on lines of public conveyance between two or more
States, was not decided.
From this judgment and reasoning Mr. Justice Harlan
dissented, because the opinion was based upon grounds entirely too narrow and artificial. He contended that the true
meaning and purpose of the Amendment was to secure direct
legislation by Congress in favor of the citizens, operating
directly upon them, not limited to State action either by legislative act or judicial or executive interference. The Amendment was aimed at class tyranny, and was not limited to the
colored race, which was denied by corporations and individuals wielding public authority rights fundamental to their
freedom and citizenship. He predicted that at some future
time it might be some other race which would fall under the
ban of race discrimination, and that if the Constitutional
Amendments were enforced according to the intent with
which, as he conceived, they were adopted, there could not
be in this Republic any class of human beings in practical
subjection to another class, with power in the latter to dole
out just such privileges as they might choose to grant.
From the consideration of the true scope and meaning
of the Post Bellum Amendments and Civil Rights, we
turn to a high moral question. In the case of Reynolds
v. United States,' Chief Justice Waite delivered a notable
opinion, deciding that bigamy in Utah was a crime against
the United States, and punishable under the statutes for
the government of the Territories. The question arose
whether, under the First Amendment to the Constitution
providing for civil and religious liberty, a man's religious
198 U. S., 145 (1878).
ï~~MORMON POLYGAMY A CRIME.
499
belief could be accepted as a justification for committing
an act made criminal by the law of the land. Reynolds
had been married in Utah knowing that he had a wife living elsewhere, and set up by way of defence that the church
of which he was a member enjoined polygamy. The Chief
Justice, in a most interesting examination of the history of
religious freedom and the statutory and Constitutional provisions intended to secure it, showed that marriage, while a sacred
obligation, was a civil contract regulated by law, lying at the
very foundations of society, the source of social relations, obligations and duties. Although Congress could not pass a law
prohibiting the free exercise of religion, yet it was clearly
within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy should
be the law of social life under its dominion. Hence the statute
under consideration was within the legitimate power of Congress and a Constitutionally valid act, as prescribing a rule
of action for all those residing in the Territories. It could
not be that those who were by religion polygamists could
commit an act which the law declared to be a crime, and go
unpunished, while those who were not polygamists were amenable to the criminal courts:
"Suppose," said he, "one believed that human sacrifices were a necessary part of religious worship; could it be seriously contended that the
civil government under which he lived could not interfere to prevent a
sacrifice? Or if a wife justly believed it was her duty to burn herself
upon the funeral pile of her dead husband, would it be beyond the power
of the civil government to prevent her carrying her belief into practice?" '
1See also Miles v. U. S., 103 U. S., 304 (188o); Murphy v. Ramsey, 114 U. S.,
15 (1884), in which the Edmunds law prohibiting cohabitation with more than one
woman was sustained; Cannon v. United States, 116 U. S., 55 (1885), in which bigamy
was defined; and Snow v. United States, I18 U. S., 349 (1885).
ï~~500 THE SUPREME COURT OF THE UNITED S TA TES.
A new and copious source of Federal power was now explored. The case of Tennessee v. Davis' embraced the relation
of the General Government to the States. A deputy Collector of
Internal Revenue had been indicted in a State court for murder.
He filed a petition to remove the case into the Circuit Court of
the United States, alleging that his act was committed in selfdefence while discharging his official duties in seizing an illicit distillery. The case was brought to the Supreme Court
upon a certificate of division of opinion between the judges in
the Court below. It was argued, in an opinion by Mr. Justice
Strong, that the United States Government, acting directly
upon the States and the people of the States, though limited
in its power, was supreme; so far as those powers extended
no State could exercise them, or obstruct their exercise. The
General Government would cease to exist if it could not enforce
its powers within the States through the instrumentality of
its own officers, and if, when thus acting within the scope of
their authority,, they could be arrested and brought to trial in
a State Court for an alleged offence against the laws of the
State in the performance of an act which was warranted
by the Federal authority which they possessed-if the General
Government could not interfere for their protection-if such
protection depended on the States-it would be possible for
any State at pleasure to arrest the operations of the General
Government. It was asserted that the judicial powers of the
United States, embracing all cases in law and equity, extended to civil and criminal cases alike, and it was shown
by vigorous reasoning that the act for which Davis had been
indicted had been done under and by virtue of his office, and
while he was resisted by an armed force in his attempts to
discharge his official duty:
1 I00oo U. S., 257 (1879).
ï~~REMOVAL OF CRIMINAL CA USES.
501
"We come then to the inquiry," said he, "most discussed during the
argument.... Has the Constitution conferred upon Congress the power
to authorize the removal, from a State Court to a Federal Court, of an
indictment against a revenue officer for an alleged crime against the State,
and to order its removal before trial, when it appears that a Federal
question or a claim to a Federal right is raised in the case, and must be
decided therein? A more important question can hardly be imagined.
Upon its answer may depend the possibility of the General Government's
preserving its own existence."
It was shown that it was no invasion of the sovereignty
of a State to withdraw from its courts into the courts of
the General Government the trial of prosecutions for offences
against the criminal laws of the State, whenever the defence
presented a case arising out of an Act of Congress. The dual
nature of our government could not be ignored. The States
were not completely and in all respects sovereign. Congress
had necessarily the right to provide for the removal of criminal causes as well as civil cases. In fact it was more necessary that this jurisdiction should be extended over criminal
than over civil cases:
"If it were not admitted," said he, "that the Federal judiciary
had jurisdiction of criminal cases, then was nullification ratified and
sealed forever; for a State would have nothing more to do than to declare an act a felony or misdemeanor, to nullify all the laws of the
Union."
Justices Clifford and Field dissented. In their judgment
the case involved issues no less grave than the nature, extent
and limitation of the judicial power of the United States, and
they contended that the Federal Courts had no criminal jurisdiction, except such as was expressly conferred by an Act of Congress in pursuance of a Constitutional grant. As long as it
had not been declared in express terms that resistance offered
ï~~502 THE SUPREME COURT OF THE UNITED STATES.
to a revenue officer in the performance of his duty was a crime
against the United States, the whole matter must be left to
the State tribunals. They pointed out that no Act of Congress gave a revenue officer immunity to commit murder in a
State, or prohibited the State from executing its laws for the
punishment of the offender. Criminal homicide in a State
was clearly an offence against the State, unless committed
within the exclusive jurisdiction of the United States. They
characterized it as an amazing proposition that an indictment
for a wilful and felonious murder, pending in a State Court
found by a grand jury of a State, under a statute of a State,
and not involving any Federal question, could be removed
from the State Court into the Circuit Court of the United
States for trial, merely because the prisoner at the time he
committed the homicide was a deputy collector of internal
revenue. 1
The final and most extraordinary extension of Federal
power was now reached.
In Jullard v. Greenman2 it was determined that Congress had the Constitutional power to make the Treasury
notes of the United States a legal tender in payment of private debts in time of peace as well as in war, and that the
Act of Congress of May 3Ist, 1878, which provided for the reissue of notes, issued during the war of the Rebellion but
which had been redeemed and paid in gold coin at the Treasury, was a Constitutional exercise of power, and that the
Secretary of the Treasury could re-issue and keep in circula1The principle established by the decision has been firmly upheld and illustrated in the later cases of Strauder v. Virginia, 100 U. S., 303 (1879); Virginia v.
Rives, Ibid., 313 (1879); Ex pane Virginia, Ibid., 339 (1879); Railroad Company v.
Mississippi, 102 U. S., 14o (188o); Davis v. South Carolina, 107 U. S., 599 (1882); and
the recent much discussed case, In re Neagle, 135 U. S., I (1890), in which the dissenting Justice, Field, was directly concerned. 2 IIo U. S., 421 (1884).
ï~~THE ZENITH OF FEDERALISM.
508
tion such notes, and that when re-issued, they were legal tenders. It was strongly contended by Senator Edmunds and
Mr. William Allen Butler as counsel that the previous decisions of the Court1 had simply established the legal tender
quality of Treasury notes as a temporary expedient, necessary
as a means of averting National destruction, but otherwise unjustifiable, and that the debates in Congress, the declarations of
the Executive department, as well as the language of the Judicial department went no farther, that in the absence of public
exigency legal tender legislation was not a means appropriate
to any legitimate end of government; that inasmuch as an
exigency created a power, so it limited the duration of the
power, and that any attempt to exercise it after the war which
had called it into being had closed, and had been succeeded
by the calm and order of established peace, was in excess of
any power reposed by the Constitution in Congress. The
opinion was delivered by Mr. Justice Gray, who re-examined
the entire question, and after a full consideration of the Acts,
declared that the Court was of opinion that no distinction in
principle could be drawn between the cases theretofore determined, and the one at bar. Having satisfied itself of the
existence of the power, the Court declared that the question
of the propriety of its exercise at any particular time, whether
in war or peace, was a question entirely for the determination of Congress, and was not a judicial question. The Court,
therefore, declined to pass the line which circumscribed the
Judicial department to tread on legislative ground. From this
judgment Mr. Justice Field alone dissented in an opinion replete with learning and marked by vigorous and emphatic
reasoning. He contended that the decision of the Court would
1Legal Tender Cases, 12 Wallace, 528 (1870).
ï~~504 THE SUPREME COURT OF THE UNITED STATES.
breed many evils, and that hereafter no restraint could be
imposed upon unlimited appropriations by the Government
for all imaginary schemes of public improvement if the printing press could furnish the money that was needed for them.'
In the great case of Kilbourn v. Thompson,2 Mr. Justice
Miller had occasion to examine the right of the House of
Representatives to punish citizens for contempt of its authority. Kilbourn had been summoned as a witness by a committee of Congress, and had refused to answer questions concerning the business of a real estate pool of which he was a
member, and had refused to produce books and papers, which
it was claimed had a bearing on the rights of the United
States as a creditor of Jay Cooke & Co., then in bankruptcy,
the firm having a large interest in the pool. By an order of
the House he was imprisoned for forty-five days in the jail
of the District of Columbia for his contempt. On his release
he sued the Sergeant-at-Arms, who had executed the order,
and the members of the committee who had been instrumental in securing it. It was held that each House could
punish its own members for disorderly conduct or for failure to
attend its sessions, and could decide cases of contested elections and determine the qualifications of its members, and
exercise the sole powers of impeachment, and in the performance of such duties could summon witnesses, or punish them
1 This decision awakened the most extraordinary excitement and led to criticism, discussion and argument in all quarters. Among the most noticeable of the
papers produced by this great judicial debate was an adverse paper by George
Bancroft, the eminent historian, entitled "A Plea for the Constitution of the United
States wounded in the House of its Guardians." See also a reply to Mr. Bancroft's argument by Mr. R. C. McMurtrie, of Philadelphia, an article in the "Amercan Law Review," Vol. IV, p. 768, by Mr. Justice O. W. Holmes, Jr., of Massachusetts,
and an article in the "Harvard Law Review" for May, 1887, Vol. I, p. 73, by Professor James B. Thayer, of the Harvard Law School. See also Bryce's "American
Commonwealth," Vol. I, p. 264. o2 103 U. S. 168 (i88o).
ï~~PO WER OF CONGRESS OVER CONTEMPTS.
for contumacy. But this power did not extend generally
to the punishment of a witness for contumacy, unless his
testimony was required in a matter into which the House
had jurisdiction to inquire. But neither House possessed the
general power of inquiring into the private affairs of a
citizen. It could not be known until it had been fairly ascertained that the Courts were powerless to redress the creditors
of Jay Cooke & Co.; and as the matter was still pending in
court, Congress had no right to interfere, the subject matter
of the investigation being judicial and not legislative. The
doctrine which had been announced in Anderson v. Dunn 1 -that the finding of the House that the plaintiff had been
guilty of contempt was conclusive-was limited, and partially overruled. It was denied that Congress possessed a
general power of punishing for contempt. Wherever they
proceeded in a matter beyond their legitimate cognizance,
their right to fine and imprison a man was not beyond the
power of the Courts to inquire into the grounds on which the
order was made. The House of Representatives was not the
final judge of its own powers and privileges in cases in which
the rights and liberties of the citizen were concerned. No
such arbitrary or uncontrollable prerogative existed. The
resolution of the House finding Kilbourn guilty of contempt,
and the warrant of its Speaker for commitment to prison,
were not conclusive, and could not be pleaded by the Sergeant-at-Arms as a justification in an action brought against
him for false imprisonment. But as the members of the committee had taken no part in the actual arrest, and were protected by the Constitutional provisions in relation to freedom
of debate, no liability attached to them.
16 Wheaton, 204 (1821).
ï~~506 THE SUPREME COURT OF THE UNITED STATES.
In the case of Ex~ arte Curtis1 an Act of Congress was
sustained which prohibited officers or employes from requesting, giving to, or receiving from any other officer or employe
of the Government any money or property or other thing of
value for political purposes, and a blow was thus struck, in
behalf of Civil Service Reform, against involuntary political
assessments. The Chief Justice based the decision upon the
ground that the act simply prohibited officers or employds of
the government from giving to or receiving from each other.
Beyond this it restricted no political privileges. Its purpose
was to promote efficiency and integrity in the discharge of
official duties, and to maintain proper discipline in the public
service; such a purpose was clearly within the just scope of
legislative power. Mr. Justice Bradley dissented. The effect
of such a law, he contended, was to prevent the citizen from
co-operating with other citizens of his own choice in the promotion of his political views, and the denial to a man of the
privilege of associating and making joint contributions with
such other citizens as he might choose, was an unjust restraint of his right to propagate and promote his views on
public affairs.
In 1882 the conflagration which had been kindled in
Chiskolm's Ezrs. v. Georgia, and smothered by the Eleventh
Amendment, again broke forth. Could a State be sued?
Could repudiation be successfully accomplished? Was there
no redress for the injured creditor of a sovereign State? A
number of cases came before the Court under the general
title of Louisiana v. Jumel.2 The Legislature had, by an
Act, in 1874, provided for an issue of bonds consolidating
and reducing the floating and bonded debt of the State. A
'11o6 U. S. 371 (1882).
2107 U. S. 111 (1882).
ï~~LOUISIANA COUPON BONDS. 507
tax was imposed which was to be annually levied and collected for the purpose of paying the interest and principal of
the bonds thereby authorized, and the revenues thus derived
were to be set apart and appropriated to that purpose, and
no other; and it was declared that it should be deemed a
felony for any officer of the State to divert the fund. Immediately after the passage of this Act an Amendment to the
Constitution was adopted, by which the issue of bonds was
declared to create a valid contract between the State and the
holders of the bonds, which the State could by no means
impair. Six years later a new Constitution went into effect,
by which the rate of interest on the consolidated bonds, previously authorized, was reduced, and the bondholders were
given an option to demand in exchange for the bonds held
by them bonds of new denominations, to be issued at the
rate of seventy-five cents upon the dollar. The holders of
the former bonds demanded payment of their coupons. Such
payment was refused by the Auditor and Treasurer of the
State. The question, as stated by the Chief Justice, was
whether the contract between the bondholders and the State
could be enforced, notwithstanding the new Constitution, by
coercing the agents and instruments of the State, whose authority to levy and collect the tax had been withdrawn in
violation of the terms of the contract, without having the
State, in its political capacity, a party to the proceedings.
The answer was in the negative. In reply to the argument
that the State Treasurer was a trustee of the moneys in his
possession for the benefit of the complainants it was shown
that he was a mere keeper of the State funds, holding them
as the agent of the State. If there was any trust, the State
was the trustee, and unless the State could be sued, the trustee
could not be enjoined. Nor could a committee of bondhold
ï~~508 THE SUPREME COURT OF THE UNITED STATES.
ers, by writ of mandamus, compel the executive officers of
the State to perform their duties under the State law. The
Courts of the Union could not claim jurisdiction over State
officers in charge of public moneys, so as to control them as
against the political power, in their administration of the
finances of the State. The State had not submitted herself
without reservation to the jurisdiction of a Court; and it was
too clear for controversy that a suit against a State officer, in
such a case as that at bar, was practically a suit against the
State itself.
"The remedy sought," said Chief Justice Waite, "in order to be
complete, would require the Court to assume all the executive authority
of the State, so far as it related to the enforcement of this law and to
supervise the conduct of all persons charged with any official duty in
respect to the levy, collection and disbursement of the tax in question,
until the bonds, principal and interest, were paid in full, and that, too,
in a proceeding to which the State as a State was not and could not be
made a party. It needs no argument to show that the political power
cannot be thus ousted of its jurisdiction, and the judiciary set in its
place.'"' 1
Mr. Justice Field dissented, admitting that the sovereign
cannot be held amenable to process in his own Courts without his consent, but contending that the conduct of the State
was virtually a repudiation of her former engagements and a
direct violation of the inhibition of the Federal Constitution
against the impairment of the obligation of contracts. Wherever a State entered the markets of the world as a borrower,
1The same doctrine was substantially asserted in Elliott v. Wiitz, 107 U. S., 711
(1882), and Cunningham v. Macon and Brunswick R. R. Co., 109 U. S., 446 (1883).
An instance of where a State had provided a remedy against herself by mandamus
is to be found in Antoni v. Greenhow, o107 U. S. 769 (1882), and it was held she
could not modify the remedy so as to impair the obligation of the contract.
ï~~FIELD AND HARLAN DISSENT.
509
she laid aside her sovereignty for the time, and became responsible as a civil corporation; and although suits against
her, even then, might not be allowed, yet her officers could
be compelled to do what she had directed that they should
do. He contended that where the State is concerned, the
State should be made a party, if it can be done. That it
cannot be done is a sufficient reason for the omission to do
it, and the Court may proceed to decree against the officers
of the State in all respects as if the State were a party to
the record. In deciding who are parties to the suit, the
Court will not look beyond the record. Making a State officer a party does not make the State a party, although her
law may have prompted his action, and the State may stand
behind him as the real party in interest.'
Mr. Justice Harlan also dissented. In his view the Constitution of Louisiana in effect nullified the previous undertakings of the State; the obligation of solemn contracts had
been impaired; the judicial arm of the Nation was hopelessly
paralyzed in the presence of an ordinance destructive of the
rights of the bondholders, and passed in admitted violation
of the Constitution of the United States. He contended that
the suits were not brought against the State merely because
they were brought against its officers; that the officers of
Louisiana could not rightfully execute the provisions of the
State Constitution which conflicted with the supreme law of
the land; the Courts of the Union should not permit them
to do so; but for the adoption of the Ordinance of 1879, the
State officers could have been restrained by injunction from
diverting funds collected to meet the interest on the consoli1 He relied upon United States v. Lee, io6 U. S., 196 (1882), the famous suit
brought for the recovery of the Arlington estate, now a National cemetery, and
Davis v. Gray, 16 Wallace, 203 (1872).
ï~~510 THE SUPREME CO UR T OF THE UNITED S TATES.
dated bonds, and could have been compelled by mandamus
to perform purely ministerial duties, enjoined by the statute
and Constitution of 1874.
A similar result was reached in the cases of New Hampskhire v. Louisizana and New York v. Louisiana,) which arose
out of an effort on the part of the bondholders to obtain their
rights through an assignment of their claims to the plaintiff
States. It was held that inasmuch as they were precluded
from prosecuting suits in their own names, they could not
sue in the name of their respective States, even with the
consent of the plaintiff States. A State could not allow the
use of its, name in such a suit for the benefit of one of its
own citizens. A State was not an independent nation, clothed
with the right and the faculty of making an imperative
demand upon another independent State for the payment
of debts which were owing to its citizens, nor could one
State create a "controversy" with another State, within the
meaning of that term as used in the Constitution, by assuming the prosecution of debts owed by the defendant
State.
Although the practical result of these rulings was to enable
the States to repudiate their debts, yet it was held that the
meaning of the Eleventh Amendment was too clear to admit
of evasion. Its evident purpose, promptly proposed as it had
been upon the announcement of the decision in Chisholm's
Executors v. Georgia, and almost immediately adopted, was
to prohibit all suits against a State by or for citizens of
other States or aliens, without the consent of the State to be
sued. Such being the case, the Court was satisfied that it
was prohibited both by the letter and the spirit of the Con
1 io8 U. S., 76 (1882).
ï~~S TATUS OF INDIANS.
511
stitution, from entertaining the suits, which were consequently
dismissed.'
Several interesting cases relating to the Indian tribes arose
at this period. In the first of these2 it was held that an Indian was not a citizen of the United States within the meaning of the Fourteenth Amendment, even though he alleged
that he was born within the United States and had severed his
tribal relations, and fully and completely surrendered himself
to the jurisdiction of the United States, and was a bona fide
resident of the State of Nebraska. The opinion was delivered
by Mr. Justice Gray, and was based upon the ground that an
Indian could not make himself a citizen of the United States
without the consent and co-operation of the Government; that
the mere fact that he had abandoned his nomadic mode of life
or tribal relations, and adopted the manners and habits of
civilized people might be a good reason why he should be
made a citizen, but did not of itself make him one; that citizenship of the United States was a political privilege which
no one not born to could assume without the consent of the
Government in some form. From this judgment Justices
Harlan and Woods dissented because under the Fourteenth
Amendment, all persons born or naturalized in the United
States, and subject to the jurisdiction thereof, were citizens of
the United States and of the State wherein they resided.
In a later case it was shown that by various treaties the
United States had recognized the Cherokee Indians as one
people, composing a single tribe or nation, and that when the
Cherokees in North Carolina dissolved their connection with
' The converse of these cases is found in Hagood v. Southern, 117 U. S. 52 (1885),
and the scope and purpose of the Eleventh Amendment is fully considered by Mr.
Justice Matthews in In re Ayers, 123 U. S. 443 (1887).
2 Elk v. Wilkins, 112 U. S., 94 (1884).
ï~~512 THE SUPREME COURT OF THE UNITED S TA TES.
their nation, and refused to accompany the body of it on its
removal, they had no separate political organization, and hence
were not entitled to a share of an annuity fund created by
sales of Cherokee lands west of the Mississippi; that they
must be re-admitted to citizenship in the Cherokee Nation
in compliance with its Constitution and laws if they wished
to enjoy the benefits of its property.'
In a still later case2 it was held that while the United
States Government had recognized in the Indian tribes a state
of semi-independence and pupilage, it had the right and authority, instead of controlling them by treaties, to govern them
by Acts of Congress, and that they were necessarily subject
to the laws which Congress might enact for their protection
and for the protection of the people with whom they came in
contact; that the States had no such power over them as long
as they maintained their tribal relations; that they owed no
allegiance to a State within which their reservation might be
established, and that the State could give them no protection:
hence it followed that an Act of Congress giving jurisdiction
to the courts of the Territories of the crimes of murder, manslaughter, rape, assault with intent to kill, arson, burglary and
larceny committed by Indians within the Territories, was Constitutionally valid, and gave jurisdiction in like cases to the
courts of the United States over the same crimes committed
on an Indian Reservation within a State of the Union.3
In 1885 the Court discharged certain Chinese prisoners
who had been proceeded against under an ordinance of the
city of San Francisco, providing that it should be unlawful
SCherokee Trust Funds, I17 U. S., 288 (1885).
2U. S. v. Kagama, i18 U. S., 375 (1885).
' The same result was practically reached in Choctaw Nation v. United States,
and U. S. v. Choctaw Nation, 119 U. S., 1 (886).
ï~~RIGHTS OF CHINESE.
513
for any person to engage in the laundry business without
having first obtained the consent of the Board of Supervisors,
unless the same be located in a building constructed either of
brick or stone, because it did not prescribe a rule and conditions for the regulation of the use of laundry property to
which all similarly situated might conform, and because it conferred a naked arbitrary power upon the Board of Supervisors
to give or withhold consent, and made all those engaged in the
business the tenants at will under the Board as to their means
of living. It was declared that the rights of the petitioners
were none the less because they were aliens and subjects of the
Emperor of China.' In a later case although an Act of Congress provided for the punishment of conspirators to deprive the
Chinese, residing within a State, of rights secured to them by
treaty, it was decided that forcibly expelling them from their
homes in the town in which they resided, was not an offence
punishable under the statute, which was held to apply only
to conspiracies affecting citizens in their enjoyment of the
elective franchise and their civil rights as citizens.2 In the
Chinese Exclusion Case,3 the Act of Congress prohibiting
those Chinese laborers from re-entering the United States, who
had departed before its passage with a certificate issued under
a former Act granting them permission to return, was held to
be valid, on the ground that even though the Act was in
contravention of express treaty stipulations, it was not on that
account invalid or to be restricted in its enforcement. Treaties were of no greater legal obligation than other Acts of
Congress, and were subject to modification or repeal. The
question whether the Government was justified in disregarding
'Yick Wo v. Hopkins, I18 U. S., 356 (1885).
2 Baldwin v. Franks, 120 U. S., 678 (1886).
8Chae Chan Ping, 130 U. S., 581 (1889).
33
ï~~514 THE SUPREME COURT OF THE UNITED STATES.
its engagements with another nation was held not to be one
for the determination of the Court. The United States,
through the action of its Legislative department, could exclude
aliens from its territory, although no actual hostilities existed
with the nation of which such aliens were the subjects, the
power of excluding foreigners being an incident of sovereignty,
hence the right to its exercise could not be granted away or
restrained.
In the case of Foster v. Kansas,' it was held in confirmation of a former decision 2 that a State law prohibiting the
manufacture and sale of intoxicating liquors was not repugnant to the Constitution of the United States,3 and this was
followed by the determination that legislation by a State,
prohibiting the manufacture within her limits of intoxicating
liquors to be there sold and bartered for general use as a
beverage, did not necessarily infringe any right, privilege or
immunity secured by the Constitution of the United States.
Under the exercise of the police powers of the State it was
competent for the Legislative department to determine primarily what measures were appropriate or needful for the protection of the public morals, the public health or the public
safety, and the Fourteenth Amendment did not deprive the
States of these powers, or impose restraint upon their exercise.
11I12 U. S. 201 (1884).
2 Bartemeyer v. Iowa, 18 Wallace, 129 (1873).
3 See also Beer Co. v. Massachusetts, 97 U. S. 25 (1877).
4Mugler v. Kansas, 123 U. S., 623 (1887). See also Bowman v. Chicago and
Northwestern R. R. Co., 125 U. S. 465 (1887), in which it was held that a law
of Iowa forbidding the bringing into the State from other States of any intoxicating liquors without a certificate, as therein required, was a regulation of commerce among the States, and was void as repugnant to the Constitution, such
statute not being an inspection law, nor a quarantine or sanitary law, and therefore not a legitimate exercise of the police power of the State.
ï~~THE CHICAGO0 ANARCHISTS.
515
In the case of Ex pare Spies,1 known as the case of the
Chicago Anarchists, it was held that the first ten Amendments
to the Constitution were not intended to limit the powers of
the State Governments in respect to their own people, but
simply operated on the National Government, and that where
challenges to jurors for bias were disallowed, and the juror
was peremptorily challenged and excused, and an impartial
juror obtained in his place, the Constitutional right of the
accused was maintained. The finding of the trial Court upon
the issue of whether the jury was impartial, ought not to be
set aside unless the error was manifest, and where the challenge was on the ground that the juror had formed an opinion, it must be made to appear clearly that upon the evidence
the Court ought to have found that he had formed such an
opinion that he could not in law be deemed impartial. It
was also held that the objection that the defendants were foreign born, and had been denied by the trial Court rights
guaranteed by treaty, could not be raised in the Supreme
Court for the first time, the point not having been considered
by the Court below; so, too, the objection that the defendants were not actually present in the State Court when
sentence was pronounced, could not be made, if the record
showed that they were present.2
The Granger Cases now claim attention. In Munn v. The
State of Illinois 3 it was held, in an opinion by Chief Justice
Waite, that under the limitations upon the legislative power of
the States imposed by the Constitution of the United States, the
1 123 U. S. 131 (1887).
2 See also Brooks v. Missouri, 124 U. S. 394 (1887) in which it was held that it
must appear on the record that some right, title, privilege or immunity was
specially set up or claimed in the State Court at the proper time, and in the
proper way, and that the decision was against the right so set up or claimed.
3 94 U. S., II3 (1876).
ï~~616 THE SUPREME COURT OF THE UNITED STATES.
Legislature of Illinois could fix by law the maximum of
charges for the storage of grain in warehouses at Chicago, and
other places in the State, it being a mere common law regulation of trade or of business. The act was not unconstitutional, and when private property was devoted to a public
use it was subject to public regulation. From this judgment
Justices Field and Strong dissented.
In the case of the Chicago, Burlington and Quincy Railroad Company v. Iowa' it was held that the railroad companies
engaged in a public employment affecting the public interest,
were subject to legislative control as to their rates of fare and
freight unless protected by their charters, and that the Illinois
statute to establish a reasonable maximum rate of charges for
the transportation of passengers and freight on the different
railroads of the State, was not void as being repugnant to the
Constitution of the United States, or to that of the State. This
opinion was also delivered by the Chief Justice, and dissented
from by Justices Field and Strong. In further illustration of
the doctrine, it was held in the Railroad Commission Cases2
that the right of the State to impose reasonable limits upon
the amount of charges by railroads for the transportation of
property could not be granted away by its legislature, unless
by express terms, or words equivalent in law.3
The most constant and strenuous discussion was maintained of the Commerce clause, indicating the enormous in194 U. S., 155 (1876). Confirmed in Dorr v. Beidelman, 125 U. S., 68o (1887).
The duties of railroad companies were stated in the Express Cases, 117 U. S., I
(1885).
21I6 U. S., 307 (1886).
3 The principle of the Granger Cases was substantially modified, and, in the
opinion of some of the Justices, practically overruled by Chicago, etc., Railway
Co. v. Minnesota, 134 U. S., 418 (1889). Minneapolis Railway Co. v. Minnesota,
Ibid., 467 (189o).
ï~~INTER-STATE COMMERCE.
517
crease and expansion of the business interests of the country.
The first important decision affecting inter-State commerce,
is that of Welton v. The Stale of Missouri1 in which it
was held that where a license tax was required under the
law of a State for the sale of goods brought from other
States, while no similar tax was laid on sales of similar goods
the product of the State itself, the law was unconstitutional
and void. The power of Congress to regulate commerce was
intended to prevent discriminations, and to cover property
transported from other States, until it had mingled with and
become a part of the general property of the country. It was
protected even after it had entered a State from any burdens
imposed because of its foreign origin. "The non-exercise by
Congress of its power, its inaction upon this subject when
considered in respect to commerce, is equivalent," said Mr.
Justice Field, "to a declaration that inter-State commerce shall
be free and untrammelled."
This was followed by Henderson et al. v. The Mayor of
the City of New York,' in which Mr. Justice Miller elaborately
reviewed all the cases of which New York v. Miln and the
Passenger cases stood as examples, and reached the definite
conclusion that although a State has authority to pass police
regulations intended to secure protection against the consequences of a flood of pauperism, yet a statute which imposes
a burdensome condition on a shipmaster, as a prerequisite to
landing his passengers, with an alternative payment of a small
sum of money for each one of them, was in reality a tax
191 U. S., 275 (1875). Other instances of determinations against State legislation
discriminating against the products of other States are to be found in Guy v. Baltimore, 1oo U. S. 434 (1879); Tiernan v. Rinker, I02 U. S., 123 (188o); County of
Mobile v. Kimball, Ibid., 691 (188o); and the earlier case of Woodruff v. Parham,
8 Wallace, 123 (1868).
292 U. S., 259 (1875).
ï~~518 THE SUPREME COURT OF THE UNITED STATES.
on the shipowner for the right to land such passengers, and
in effect a tax on the passenger himself, since the shipmaster
made him pay it in advance as a part of his fare. Such a
statute amounted to a regulation of commerce, particularly
Swhen applied to passengers from foreign countries, and was,
therefore, unconstitutional and void. Although it might be
conceded that there was a class of legislation which might
affect commerce both with regard to foreign nations and between the States, in regard to which the laws of the State
might be valid, in the absence of action under the authority
of Congress on the same subject, yet this could have no' reference to matters which were in their nature National, or which
admitted of a uniform system or plan of regulation, and while
the Court did not undertake to decide whether a State might
or might not, in the absence of all legislation by Congress
on the same subject, pass a statute strictly limited to defending itself against paupers, convicted criminals, and others of
that class, yet it was of opinion that to Congress rightfully
and properly belonged the power of legislating on the whole
subject?.'
A similar conclusion was reached in the case of Chy Lung
I Compare with this the able opinion of Mr. Justice Field in County of Mobile
v. Kimball, O102 U. S., 691 (188o), declaring that State legislation affecting matters
local in their nature, or intended to be mere aids to commerce, was not forbidden.
The improvement of harbors, pilotage, beacons, buoys, etc., could be provided for
by the States until Congress interfered. The same point was ruled in Packet Co.
v. Catlettsburg, 105 U. S., 559 (188i). An interesting discussion by Mr. Justice Bradley is to be found in Robbins v. Shelby County Taxing District, 120 U. S., 489
(1886), setting aside as unconstitutional a license tax on "drummers," soliciting
sales of goods on behalf of individuals or firms doing business in other States.
But quarantine regulations were sustained in Morgan v. Louisiana, 118 U. S., 455
(1885). An 'ordinance as to washing and ironing in public laundries was sustained
as a police regulation, Barbier v. Connolly, 113 U. S., 27 (1884). Soon Hing v.
Crowley, Ibid., 703 (1885).
ï~~HEAD MONEY CASES.
519
v. Freeman,1 where a California statute was stricken to the
ground because the powers conferred upon State Commissioners were such as to bring the United States into conflict with
foreign nations, and could only belong to the Federal Government. A mere police regulation, although limited in its
terms, could not be extended so far as to prevent or obstruct
classes of persons other than criminals and paupers from the
right to hold personal and commercial intercourse with the
people of the United States. The statute in this respect extended far beyond the necessity in which kthe rzght, if it existed, was founded, and invaded the right of Congress to regulate commerce with foreign nations, and was therefore void.
The State of New York again attempted legislation, but
a tax on every alien passenger coming by vessel from a foreign country and holding the vessel liable for payment, was
determined to be a regulation of commerce and void, even
though the purpose was to aid the inspection laws of the State
for the relief of paupers, the detection of criminals and the
care of the sick.2
The time had come for Congress to regulate immigration,
which was done by act of August 3, 1882, imposing on the
owners of vessels bringing passengers from a foreign port into
any port of the United States a duty of fifty cents for each
passenger not a citizen. This was held to be a valid exercise of the power reposed by the Constitution in Congress to
regulate commerce with foreign nations, and not a tax subject
to the limitations imposed by that instrument. In fact it was
a contribution to a fund designed to mitigate the evils incident
to immigration.3
192 U. S., 275 (1875).
2 People v. Compagnie Generale Transatlantique, 107 U. S., 59 (1882).
$ Head money cases, 112 U. S., 580 (1884).
ï~~520 THE SUPREME COURT OF THE UNITED STATES.
Although the purpose of the statute was highly humane
and beneficial to the poor and helplesss immigrant and essential to the protection of the people in whose midst they were
deposited, the statute was assailed. Mr. Justice Miller in defending it, in one of those sentences which illuminate a darkened subject, said: "We are now asked to decide that the
power does not exist in Congress-which is to hold that it does
not exist at all-that the framers of the Constitution have so
worded that remarkable instrument that the ships of all nations, including our own, can, without restraint or regulation,
deposit here, if they find it to their interest to do so, the entire European population of criminals, paupers and diseased
persons without making any provisions to preserve them from
starvation and its concomitant sufferings, even for the first few
days after they have left the vessel." To this there could be
but one reply. Freedom of transportation of passengers and
freight between the States, it was said in Gloucester Ferry
Company v. Pennsylvania,) implied exemption from all charges
1 114 U. S., 196 (1884). The cases illustrating the foregoing principles are numerous, but the following are selected as leading. The Western Union Telegraph Co. v.
Massachusetts, 125 U. S., 530 (1887); Pickard v. The Pullman Southern Car Co., 117
U. S., 34 (1885); Philadelphia Steamship Company v. Pennsylvania, 122 U. S., 326
(1886); in which it was held that a tax on gross receipts of a steamship company was void because the company was engaged in transporting passengers and
freight between States and from foreign countries. Wabash Railway Co. v. Illinois, I18 U. S., 557 (i886), preventing discriminations in charges of a railroad
company for a greater or shorter distance in which a statute intended to regulate
or to tax the transportation of passengers or property from one State to another
was held to be void. Fargo v. Michigan, 121 U. S., 230 (1886), in which it was
determined that a State tax on gross receipts of a railroad company for the carrying of freight and passengers into and out of and through the State is a tax
on commerce among the States and is void, the business itself being inter-State
commerce and therefore not taxable under the guise of tax on business transacted within its borders. In Sands v. Manistee River Improvement Company, 123
U. S., 288 (1887), the internal commerce of a State was defined. In Brown v.
Houston, 114 U. S., 622 (1884), it was said that the term "imports and exports"
ï~~REGULA TION OF INTER-STA TE COMMERCE.
521
except such as were imposed as compensation for the use of
property employed, or for facilities afforded for its use or as
ordinary taxes on the value of property.
The final result of all the cases was well stated by Mr. Justice Bradley in Leloup v. Port of Mobile, where, after showing
that reference was necessary to the fundamental principles stated
and illustrated by Marshall, he declared: "No State has the
right to lay a tax on inter-State commerce in any form whether
by way of duties laid on the transportation of the subjects of
that commerce, or on the receipts derived from that transportation, or on the occupation or business of carrying it on, and the
reason is that such taxation is a burden on that commerce, and
amounts to a regulation of it which belongs solely to Congress."
"But this exemption of inter-State and foreign commerce
from State regulation, does not prevent the State from taxing
the property of those engaged in such commerce located within
the State as the property of other citizens is taxed, nor from
as used in the Constitution had no reference to goods transported from one State
to another, and that a tax on personal property after it had cormle within the
State was sustainable. In Bowman v. Chicago, &c. Railway Co., 125 U. S., 465
(1887), a law of Iowa forbidding common carriers from bringing intoxicating
liquors within the State was set aside as a regulation of commerce on the ground
that it was not a quarantine or police regulation. "It has never been regarded,"
said Mr. Justice Matthews, "as within the legitimate scope of inspection laws to
forbid trade in respect to any known article of commerce irrespective of its condition or quality merely on account of its intrinsic nature, and the injurious consequences of its use or abuse." Compare with this Walling v. Michigan, I1i6 U.
S., 446 (1885), in which a State tax on an occupation discriminating against the
introduction and sale of products of other States or against citizens of other States,
was held to be void, and could not be sustained under the police power to regulate the sale of liquors. In Smith v. Alabama, 124 U. S. 465 (1887), a law requiring engineers of railroad trains to be examined and take out a license was
sustained even as to those engaged in running trains between different States
because the act did not burden or impede inter-State commerce but was intended
to secure safety both to persons and property for the public.
1127 U. S., 640 (1887).
ï~~522 THE SUPREME COURT OF THE UNITED STATES.
regulating matters of local concern which may incidentally
affect commerce such as wharfage, pilotage, taxation of property
of a telegraph company within a State."
In the great case of the Western Union Telegraph Company
v. Texas,1 it was held that the telegraph was an instrument
of commerce, and that telegraph companies were subject to
the regulating power of Congress in respect to their foreign
and inter-State business, and that the State could not place a
specific tax on each message sent out of the State or sent by
public officers on the business of the United States, although
they might tax messages sent by private parties from one
place to another exclusively within State jurisdiction.2
Under the same power of Congress to regulate commerce,
the principles of the Wheeling Bridge case were affirmed in
the great case of the Brooklyn Bridge, argued by the Hon.
William H. Arnoux and Joseph H. Choate, in which it was
held to be competent for Congress to authorize the construction of a bridge over a navigable water, and even though in
fact it might be deemed an obstruction, in law it could not be
so considered, because the obstruction had been made under
proper authority.
1 105 U. S., 460 (1881).
2 This doctrine was in confirmation of that announced in Pensacola Telegraph
Company v. Western Union Telegraph Company, 96 U. S., I (1887), in which it was
said that a Telegraph Company occupied the same relation to commerce as a carrier
of messages as a railroad company did as a carrier of goods, that both were
instruments of commerce, and that their business was commerce itself; that though
they did their transportation in different ways, and their liabilities were in some
respects different, yet they were both indispensable to those engaged to any considerable extent in commercial pursuits. See also Western Union Telegraph Co
v. Pendleton, 122 U. S., 347 (1887). Western Union Telegraph Co. v. Massachusetts,
125 U. S., 530 (1888).
3 Miller v. Mayor of New York, o109 U. S., 385 (1883). See also Cardwell v.
Bridge Co., I13 U. S., 205 (1884), confirming the doctrine of Gilman v. City of
Philadelphia, holding that in the absence of legislation by Congress, a State might
ï~~VIRGINIA COUPON CASES.
523
In the Virginia Coupon Cases' it appeared that the State of
Virginia had issued coupon bonds, and provided as a part of the
right of the bondholders that the coupon should be receivable in
payment of taxes, thus lodging in the hands of the creditor a
self-executing remedy. It was held that this contract could
not be impaired, and when a tax-collector to whom the coupons had been tendered, declined them, and distrained on the
property of the taxpayer, he was personally liable in an action of detinue, and could not set up the later law of his
State as a justification. It was further held not to be a suit
against a State under the terms of the Eleventh Amendment;
for as the Constitution had annulled the law of Virginia impairing the obligation of its contract, it was clear that the
tax-collector was stripped of his official character, and was
self-convicted of a personal violation of the plaintiff's rights,
for which he must personally answer in damages. The doctrine of this case was confirmed in Royall v. Virginia,2 where
a license fee was required of an attorney for the practice of
his profession payable under the laws of the State in coupons
which were duly tendered and refused, and it was held that
he might at once enter upon practice without license, and that
any State law subjecting him to a criminal proceeding was void.3
An interesting distinction is presented by the two Lottery Cases between the effect of a charter by an ordinary
legislative act and a Constitutional provision.
In the case of Stone v. Mississzi,4 the police powers
of the States were considered, and it was held that the Legisauthorize the bridging of a navigable stream within its limits. Again confirmed
in Willamette Iron Bridge Co. v. Hatch, 125 U. S., I (1887).
1114 U. S. 270 (1884). 2 116 U. S. 572 (1885).
3 Compare these decisions with Hartman v. Greenhow, 102 U. S., 72 (1880), and
Louisiana v. Jumel, 107 U. S., 711 (1882) 4 101i U. S., 814 (1879).
ï~~524 THE SUPREME COURT OF THE UNITED STATES.
lature, by chartering a lottery company for twenty-five years,
could not defeat the will of the people expressed in a Constitutional Amendment (adopted one year later than the charter)
forbidding lotteries, lotteries being within the exercise of the
police powers of the State, which extended to all matters affecting the public health or the public morals. It was not
competent for the Legislature to make a contract by charter
by which the State bargained away her police power. The
opinion was delivered by Chief Justice Waite. The Mississippi Lottery was thus destroyed.
The Louisiana Lottery was sustained in the case of the
Ciz'ty of New Orleans v. Houston,1 in an opinion delivered
by Mr. Justice Matthews, in which it was shown that, the
grant of the charter of the Company being contained in the
Constitution of the State, the Legislature, acting under that
Constitution, could not contravene it, although the subject
matter of such contract might have been embraced within
the police powers of the State, the effect of the Constitutional
provisions being to establish a contract binding upon the
State for the specified period.
The career of Chief Justice Waite fitly terminated with
the great Telekphone Cases,2 in which the claims of Alexander
Graham Bell, as the inventor of this marvellous instrument
of business communication, were sustained against all who
claimed the distinction of priority of invention and sought to
reap the golden harvest of profit which had accrued.
Several changes in the personnel of the Court had taken
place during the period reviewed which it is our duty to
notice.
Upon the death of Mr. Justice Clifford, Horace Gray,
1 119 U. S. 265 (I886).
Z 126 U. S. 1 (1888).
ï~~
ï~~
ï~~HORA CE GRAY.
525
then the Chief Justice of Massachusetts, was appointed in his
place, and duly commissioned upon the 2oth of December,
i881. He is a native of Boston, and was born on the 24th
of March, 1828, graduated from Harvard University in 1845,
enjoyed the advantages of extensive travel in Europe, and returned to Harvard to enter its Law School. He subsequently
read law under the direction of Judge Lowell, and obtained admission to the bar in 1851. In early life he identified himself
with the founders of the Free Soil party, but the practice of his
profession absorbing his attention, his subsequent connection
with politics has been but nominal. He soon won a prominent position at the bar, conducting many important cases,
and in 1854 was appointed Reporter of Decisions of the Supreme Judicial Court of Massachusetts, a position which he
held until i861, publishing sixteen volumes. While thus
engaged he formed a law partnership, in 1857, with Judge
Hoar, and continued in the discharge of active professional
engagements and the enjoyment of an increasing practice
until he was appointed by Governor Andrew, on the 24th of
August, I864, an Associate Justice of the Supreme Court of
the State. In 1873 he became Chief Justice, as the successor
of Chief Justice Chapman.
As a State Judge he delivered many interesting opinions
on a great variety of subjects, the most important of which
concerned the exemption of the United States from suit, the
law of charities, ancient grants and boundaries, the effect of
war upon private rights, the annexation of towns, and the
liability of municipal corporations to private action, the Constitutionality of confirmatory statutes, contracts ultra vires,
and the conflict of laws. Uniting to natural ability an unusual and thorough knowledge of law, acquired by careful
study and ripened by experience, his accession to a place
ï~~526 THE SUPREME COURT OF THE UNITED STATES.
upon the Supreme Bench of the Union was not only greeted
with applause and commendation, but was recognized as a
striking feature in a professional career, which resembled, in
its steady rise and expansive progression, the promotion of
an English lawyer to the most exalted honors. In character
as well as learning, in age and robust vigor, in a majestic
presence, he was fit for the work before him. As. a presiding Judge he had been strict and punctilious-a trait which,
although uncomfortable to the slovens and sluggards of the
Bar, had proved an incentive to younger men to acquire
technical correctness and precision. Anxious himself to learn,
ambitious to preserve the precious stores of knowledge, and
stimulating others to emulate his example, honorable, fearless
and competent, he has become one of the most trusted guardians of the interests of justice.
In the Supreme Court his views have been chiefly in
support of a high exercise of Federal authority, and he it
was who, in the famous case of Juillard v. Greenman-establishing the Constitutionality of the Legal Tender Acts in time
of peace-placed the cap-stone upon the majestic column representative of National Power, attaining a dizzy height to which
even the boldest architect of the Constitution had never raised
his eyes. Since then, whether it be the novelty requisite to
support a patent, the status of Indians, the relations of
guardian and ward, the conflict of laws, the Constitutionality
of mill acts, the interpretation of wills, the nature of infamous crimes, the true meaning of contracts of shipment, the
powers of courts martial, the exemption of the property of
the United States from taxation by a State, the Civil law of
Louisiana, the distinction between capital and income, the original jurisdiction of the Supreme Court over suits by a State, or
the jurisdiction of the United States over the Guano Islands
ï~~SAMUEL BLA TCHFORD.
527
that called forth a judicial utterance or the entry of a final
decree, he has in each instance expressed himself in terms
dignified, firm and impressive, and supported his conclusions
by reasons well sustained by authority. His dissenting opinions are but few in number, the best known of which are in
the Arlington case,' and the Original Package case of Leisy v.
Hardin.2
Upon the resignation of Mr. Justice Hunt, Samuel Blatchford, of New York, was commissioned as an Associate Justice
upon the 22d of March, 1882. His grandfather, Samuel
Blatchford, was an English dissenting minister, who came
from Devonshire to the United States in 1795, and after several changes of residence established himself at Lansingburg
in the State of New York. His father, Richard Milford
Blatchford, was a native of Stratfield, Connecticut, a graduate
of Union College, subsequently a school teacher, and still later
a successful member of the bar of New York City, the financial agent as well as counsel of the Bank of England, and
still later counsel for the Bank of the United States. He was
also a member of the lower house of the Legislature of New
York, and at the outbreak of the Civil War became a member of the Union Defence Committee of the city of New York,
and was appointed by President Lincoln, in connection with
John A. Dix and George Opdyke, a member of a committee,
chiarged with the disbursement of Government moneys for the
purpose of procuring soldiers for the Union Army. In 1862
he was appointed Minister Resident to the States of the
Church, and remained in Rome until August, 1863. He was
an intimate personal friend of Daniel Webster, and one of the
executors of his will. He died at Newport, Rhode Island, in
1 United States v. Lee, io6 U. S., 196 (1882).
' 1 35 U. S., i oo (1889.)
ï~~528 THE SUPREME COURT OF THE UNITED STATES.
1875. The mother of Mr. Justice Blatchford was Julia Ann,
daughter of John P. Mumford, Esq., of New York City.
Their son, Samuel Blatchford, was born in the city of New
York on March 9th, 1820, was educated at a boarding school
at Pittsfield, Massachusetts, and subsequently at the school of
William Forrest, a well-known teacher in the city of New
York, and at the grammar school of Columbia College, then
under the superintendence of Charles Anthon, LL.D., Jay
Professor of Greek and Latin. He entered Columbia College
at the age of thirteen, and graduated in 1837, at the age of
seventeen. He then became private secretary to William H.
Seward, who had been elected Governor of New York, and
held the position until his resignation in 1841, when he was
appointed Military Secretary on the staff of the Governor. In
the following year he was admitted to the bar, and practiced
his profession in the city of New York, in connection with his
father and his uncle, E. H. Blatchford, until November, 1845,
when he removed to Auburn, and became the law partner of
Governor Seward and Christopher Morgan. In 1854, removing to the city of New York, he formed a copartnership in
connection with Clarence A. Seward and Burr W. Griswold,
under the firm name of Blatchford, Seward and Griswold.
Upon the 3rd of May, 1867, he was appointed District Judge
of the United States for the Southern District of New York
in the place of Samuel R. Betts, who had resigned. His
opinions in the District Court are reported in the first nine
volumes of Benedict's District Court Reports, and his opinions in the Circuit Court, while District Judge, are reported
in volumes 5 to 14 of Blatchford's Circuit Court Reports.
On the 4th of March, 1878, he was appointed Circuit Judge
of the Second Judicial Circuit in the place of Alexander S.
Johnson, deceased, and his opinions, since March, 1882, in the
ï~~' L.- x
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ï~~
ï~~SAMUEL BLA TCHFORD.
529
Circuit Court, are reported in volumes 14 to 24 of Blatchford's Circuit Court Reports, and in the " Federal Reporter."
In 1867 the degree of LL.D. was conferred upon him by
his Alma Mater, and he was chosen Trustee, which position he still holds. In 1852 he commenced the publication
of his series of Reports of the Circuit Courts of the United
States within the Second Circuit, and has published twentyfour volumes of such Reports. As an Admiralty Judge he
ranks among the foremost in the land, having considered
and determined questions as to the rules of navigation on
the high seas, as to excessive speed of steamers on the high
seas in a fog, as to whether damage to a cargo by rats is a
peril of the sea, as to process of foreign attachment in admiralty, as to re-insurance of a charter party, as to jurisdiction in admiralty of damages not done on the water, and as
to the liability to a seizure in admiralty, for a maritime tort,
of a steam-tug belonging to a municipality and employed exclusively in public duties. As a patent lawyer he is clearheaded and sensible, determining, among other notable cases,
the validity of letters patent for insulating telegraph wires
by gutta-percha, and the liability of a common carrier for
infringing a patent, when it carried the infringing article,
which was to be sold at its destination for use. Besides
these he adjudicated numerous questions in bankruptcy,
questions of copyright and libel, the power of the President to cancel a pardon before it had been delivered to
the prisoner, the legality of the Brooklyn Bridge as a structure suspended over navigable waters, the validity of a
statute of New York discriminating in rates of wharfage in
favor of canal-boats of the State, and many kindred controversies. Fully equipped by such a varied judicial experience
in the busiest Circuit of the nation for dealing successfully
84
ï~~530 THE SUPREME COURT OF THE UNITED STATES.
with the complex questions of Federal jurisprudence, he
brought to the Supreme Bench not only ample learning, but
an unusual degree of ready ability to meet problems as
they arose. His appointment was received with hearty and
universal approval. His judicial style is clear, but hard
and dry, lacking compression and nervous energy, but it is
vain to expect the verba ardentia when discussing the liens
which may be made by a Court to take precedence of the
lien of a railroad mortgage, or when a collector of customs will
not be personally liable for a tort committed by his subordinates. His accuracy, care, impartiality and firmness are alike
conspicuous, whether he states the law relating to the re-issue
of patents, or subjects the most powerful railroad corporation
in the land to the provisions of a State Constitution.
The successor of Mr. Justice Woods was Lucius Quintius
Cincinnatus Lamar, of Mississippi, who was duly commissioned as an Associate Justice upon the i6th of January,
1888. His father, who bore the same name, was himself an
eminent jurist, a Judge of the Supreme Court of Georgia and
an eloquent speaker. Of him it was said by a member of
the highest Court in that State: "From the day of his election to that of his lamented death, he discharged the duties
of his office with signal ability and with public applause,
which few in judicial stations have had the good fortune to
receive." His distinguished son was born upon the 17th of
September, 1825, in Putnam County, Georgia, and upon his
father's death was taken to Oxford, Mississippi, where he
received his early education. He was a graduate of Emory
College, Georgia, in 1845, and having studied law in Macon,
was admitted to the bar in 1847. He then returned to
Oxford, and held the place of Adjunct Professor of Mathematics in the University of Mississippi, remaining there but
ï~~4'
ï~~
ï~~LUCIUS Q. C. LAMAR.
581
a few years, when he resigned, and resumed the practice
of the law in Covington, Georgia. Whilst in excellent business for so young a man, he was elected to the Georgia
Legislature in 1853, but the following year returned to Mississippi, and settled upon his plantation in Lafayette. In
1857 he was elected a member of Congress as a Democrat,
and served until 186o, winning distinction, when he withdrew
from Congress to take part in the Secession Convention of
Mississippi, and subsequently entered the Confederate Army
as Colonel of the Nineteenth Mississippi Regiment. He took
an active part in many of the engagements of the Army of
Northern Virginia, but was compelled to retire on account of
ill health. He was then sent as Commissioner to Russia; but
on arriving in Europe, in 1863, circumstances had so changed
that the success of his mission was not a possibility. At the
close of the war he returned to Mississippi, and in 1866 held
the position of Professor of Political Economy and Social Science in the University of that State. In 1867 he was transferred to the Chair of Law, and finally returned to the bar.
In 1872, though engaged in a large practice, he was
elected to Congress, and his disability on account of having
borne arms against the Union was removed after his
election. For the first time in many years a Democratic
House of Representatives assembled, and Mr. Lamar, being
chosen to preside over the Democratic Caucus, delivered an
able and noteworthy address, outlining the policy of his
party. His leadership was marked and masterly, and fixed
the gaze of the nation. In 1874 he was re-elected, and spoke
on critical occasions with power and effect. In 1876 he became a Senator of the United States, sharing in the debates
only on important questions, and then, maturely prepared, as
he never failed to be, his arguments were sustained by a
ï~~532 THE SUPREME COURT OF THE UNITED STATES.
closeness of logic and an eloquence of style which won for
him the attention and respect of both parties. He insisted
that, as integral members of the Federal Union, the Southern
States have equal rights with those of the North, whilst they
were bound by both duty and interest to look to the general
welfare and to support the honor and credit of a common
country. He was also a zealous friend of public improvements, and especially of the Mississippi River and the Texas
and Pacific Railroad. He exercised great independence of
thought, and at one time, when instructed by the Legislature of his State to vote upon the currency question against
his convictions, he refused to obey, boldly appealed to the
people, and was triumphantly sustained. Upon the 5th of
March, 1885, he was appointed Secretary of the Interior in
the Cabinet of President Cleveland, and delivered many important opinions affecting the public lands.
As a jurist, he has taken high rank, his opinions being
marked by scholarship and careful study of principles and of
cases. One of his colleagues, upon being asked whether he
had met the expectation of his friends, replied: " Fully. Mr.
Cleveland made no mistake in appointing him. Whatever
doubts existed as to his fitness for the Supreme Bench growing out of his long political and parliamentary career and
absence from the active practice of his profession, have wholly
disappeared. This will be conceded by all who have read his
opinions. He has sound judgment, a calm temperament and
a strong sense of justice. He possesses the judicial faculty
in a very high degree. He takes broad, comprehensive views
of legal and Constitutional questions, and states his conclusions with unusual clearness and force, and in language most
aptly chosen to express the precise idea of his mind. His
brethren are greatly attached to him." Upon another occa
ï~~LUCIUS Q. C. LAMAR.
588
sion one of his judicial associates remarked: "Your differentiation of cases where a State may and may not be sued is
the best I have seen. The case seemed to me a difficult one,
and I should not have suspected that you did not enjoy
writing opinions. This is excellent." 1 Of the same case the
oldest Justice now upon the bench wrote as follows: "I think
hat your summary of the Constitutional principles applicable
to the reciprocal relations of Article I, Section io, and the
Eleventh Amendment of the Constitution, is so clear that it
would suffer from abridgment," while of a recent case involving the question of contingent or prospective profits, it was
said: "Your annunciation of the principles applicable to the
question of profits is unusually clear and concise."'
The logical power of Mr. Justice Lamar, his striking talents as a rhetorician, his clearness of vision in detecting the true
point in controversy, and his tenacious grasp upon it through
all the involutions of argument, his familiarity with adjudged
cases, his well-defined conception of the nature of the General
Government and the distribution of its powers under the Constitution are best displayed in his dissenting opinion in In re
Neagle, in which, unswayed by horror or resentment at the
atrocious attempt to assassinate Mr. Justice Field, he insisted
that before juris.diction of the crime of murder could be withdrawn from the tribunals of the State where the act was perpetrated into the Federal Courts, it was necessary to show some
law, some statute, some Act of Congress which could be pleaded
as an authoritative justification for the prisoner's act, and
that no implied power existed in the President or one of his
subordinates to substitute an order or direction of his own,
no matter how lofty the motive or commendable the result.
1 Pennoyer et al. v. McConnaughy, April 20, 1891.
Howard et al. v. The Stillwell and Bierce Manufacturing Company, March 16, 1891.
ï~~584 THE SUPREME COURT OF THE UNITED STATES.
CHAPTER XX.
THE COURT COMPLETES THE WORK OF THE FIRST CENTURY OF ITS EXISTENCE:
1888-1890o: DEATH OF CHIEF JUSTICE WAITE: APPOINTMENT OF MELVILLE W.
FULLER AS HIS SUCCESSOR: SKETCHES OF CHIEF JUSTICE FULLER AND OF AsSOCIATE JUSTICES BREWER AND BROWN: GENERAL CHARACTER OF CASES CONSIDERED: INTER-STATE COMMERCE: LEISY 7v. HARDIN, THE ORIGINAL PACKAGE
CASE: POLICE REGULATIONS AS TO LIQUOR LAWS: INDEPENDENCE OF EXECUTIVE OFFICERS: RIGHT OF DEBTOR TO INSURE HIS LIFE: POWER OF COURTS TO
PUNISH CONTEMPTS: INDIAN TRIBES: CONSTITUTIONAL CONTROL OF RAILROADS:
MORMON CHURCH CASE: SUITS AGAINST A STATE: Ex POST FACTO LAWS:
CRUEL AND UNUSUAL PUNISHMENTS: MODIFICATION OF GRANGER CASES: Ex
PARTE TERRY: IN RE NEAGLE: PEACE OF THE UNITED STATES: TELEPHONE
CASES: THE BAR OF THE SUPREME COURT: CONCLUSION.
THE death of Chief Justice Waite occurred on the 23rd
of March, 1888, and Melville Weston Fuller, of Illinois, was duly commissioned as his successor upon
the 2oth of the following July.
The ancestors of Mr. Fuller were among the earliest and
sturdiest settlers of New England.. One of them was the
celebrated Thomas Weld, a graduate of Cambridge University, England, who became the first minister of the first
church of Roxbury, now a part of Boston, and was known
as the "Preacher" when Eliot, the Apostle, was the "Teacher."
His grandson was the famous Habijah Weld, who is described
in Edwards' "Travels in New England" as an orator of great
virtue and power and "a perfect Boanerges in the pulpit."
His daughter, Hannah, married the Rev. Caleb Fuller, a
graduate of Yale, and a grandson of that distinguished citizen of Dedham who had married the sister of the proscribed
patriot and bold captain, Daniel Fisher, who in I682 was the
ï~~N
7,
ï~~
ï~~MELVILLE W. FULLER.
M8
Speaker of the General Court, and was prosecuted by the
British government for sedition. Another daughter married
an ancestor of the late Chief Justice Shaw, of Massachusetts,
so that the rugged qualities of leadership which characterized
the old Puritan preacher, have been honorably perpetuated by
his descendants. The grandfather of the present Chief Justice of the United States was the Hon. Henry Weld Fuller,
a native of Middletown, a classmate in Dartmouth College of
Daniel Webster, subsequently a lawyer of renown, and at his
death a Judge of Probate in Kennebec County, Maine. His
father was Frederick Augustus Fuller, a graduate of the Harvard Law School, and a sound lawyer, whose advice was
much sought after. His mother was Catharine Weston, a
daughter of the Hon. Nathan Weston, an eminent Judge of
the Supreme Court of Maine, and for many years Chief Justice of the State. Descended on both sides from a race of
lawyers, inheriting the well-trained faculties, as well as the
traditions, of a long line of jurists and orators, it is not surprising to find in the most distinguished of its members ample legal knowledge, forensic skill, stirring eloquence, scholarly habits and convincing logic,-qualities which made him
pre-eminent at the Bar of the great West, and, added to his
professional experience, have fitted him to succeed the lamented Waite.
Melville W. Fuller was born in Augusta, Maine, on the
I Ith of February, 1833. He entered Bowdoin College at an
early age, and graduated in 1853. He began the study of the
law almost immediately under the direction of his uncle,
George M. Weston, at Bangor, and also attended a course of
lectures at the Harvard Law School. In 1855 he formed a
legal copartnership with his uncle, Benjamin A. G. Fuller, at
Augusta, with whom he was also associated as editor of "The
ï~~686 THE SUPREME CO UR T OF THE UNITED STA TES.
Age," a leading Democratic paper. In the following year he
became President of the Common Council of his native town,
and also served as City Solicitor. Although meeting with remarkable success and enjoying the most enviable prospects, he
resolved, with the enterprising spirit of a pioneer, upon a removal to the West, and towards the close of the year 1856
established himself in Chicago. Here he was engaged in
active practice for thirty-three years, rising gradually to the
highest rank, and taking part in all the important arguments
of the time. In the famous Cheney case he greatly distinguished himself, defending the Bishop before an ecclesiastical
council against a charge of canonical disobedience, and astonishing his hearers by his extraordinary knowledge of ecclesiastical law, and his familiarity with the writings of the Fathers
of the Church. His argument of the same case before the
Supreme Court of Illinois has been pronounced a masterpiece
of forensic eloquence and skill.
His practice was of the most varied and general character, embracing cases in every kind of tribunal, both State
and National. His first case before the Supreme Court of the
United States was that of Dows v. Chicago,l an attempt to restrain by bill the collection of a tax upon shares of the capital stock of a bank; the first case that he argued in person
was that of the Traders' Bank v. Campbell,2 involving the
interesting question of when a judgment against a bankrupt constitutes a fraudulent preference. In the first case
heard by Chief Justice Waite, that of Tafppan v. The Merchants' National Bank of Chicago,3 he argued, though unsuccessfully, that the power of a State to tax stockholders in
a National bank did not extend to non-resident stockholders,
ii Wallace, lo8 (1871). 2 14 Wallace, 87 (1872).
s I9 Wallace, 490 (1874).
ï~~MELVILLE W. FULLER.
587
while his last case, which was not decided until after he had
taken his seat upon the bench, was that of Railway Companies
v. The Keokuk Bridge Co.,' in which it was held that a contract made by the President of a railroad company in its behalf to pay certain sums for the use of a railway bridge across
the Mississippi River between Illinois and Iowa, the terms
of which had been communicated to the Directors and stockholders, and not disapproved by them within a reasonable time,
was not ultra vires, but was binding upon the corporation.
His participation in politics has been slight. In 1861 he
was a member of the State Constitutional Convention of Illinois, and in 1862 he served for a single term in the Legislature. He has been chosen as a delegate to the Democratic
National Conventions of 1864, 1872, 1876 and 188o.
A ripe scholar in the classics, familiar with several European languages, diligent in research, fluent in speech and
ready with his pen, he has attained a high reputation as an
orator, and has delivered many notable addresses. Of these
the most important was in commemoration of the Inauguration of George Washington as First President of the United
States, delivered before the two Houses of Congress on the
i ith of December, 1889;2 an oration characterized by ardent patriotism, descriptive power, historic spirit and lofty eloquence.
The Northwestern University in 1884, and Bowdoin in
1888, conferred upon him the degree of LL.D. He presides
with dignity and grace over the deliberations of the tribunal,
and is known to the Bar as a man of amiable disposition and
generous impulses.8
1 131 U. S., 371 (1889). 'Appendix to 132 U. S., 707.
s Sketch of Chief Justice Fuller, "The Green Bag," No. I, Vol. I, p. I; Chicago "Legal News," Vol. XX, p. 291; Appleton's "Cyclopedia of American Biography;" private letters.
ï~~688 THE SUPREME COURT OF THE UNITED STATES.
The death of Mr. Justice Matthews upon the 22d of
March, 1889, created a vacancy which was filled by the appointment, in December of the same year, of David Josiah
Brewer, who was duly commissioned upon the 6th of January,
1890. He was born in Smyrna, Asia Minor, on the 2oth of
June, 1837, and was the son of the Rev. Josiah Brewer and
Emilia A., a sister of David Dudley, Stephen J., and Cyrus
W. Field. His parents were missionaries to the Levant, and
returned to this country when he was still an infant. His
early education was received in the schools of Connecticut,
and in 1851 he entered Wesleyan University at Middletown,
where his father then lived, but afterwards went to New
Haven, and graduated from Yale College in 1856, with high
honors. Upon leaving Yale he entered the law office of his
uncle, David Dudley Field, in New York City, in which he
spent one year as a student, and then completed his legal
studies in the Albany Law School, from which he graduated
in the class of 1858. In the Fall of that year he went West,
and after a residence of a few months in Kansas City started up
the Arkansas Valley for Pike's Peak and Denver. Returning
to Kansas in June, 1859, after a short visit home he established himself in Leavenworth, and resided there until removing to Washington in January of 1890.
In 1861 he was appointed United States Commissioner.
In the following year he was elected Judge of the Probate
and Criminal Courts of Leavenworth County. In 1864 he was
elected Judge of the District Court for the first judicial district
of Kansas, and in I868 served as County Attorney. Being
interested in educational matters he became a member of the
Board of Education of Leavenworth City in 1863, and in 1865
became President of the Board, and still later was Superintendent of the public schools. During 1862 and 1863 he was secre
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ï~~DA VID J. BREWER.
539
tary of the Mercantile Library Association of Leavenworth, and
its President in 1864. In 1868 he became President of the State
Teachers' Association. In 1870 he was elected a Justice of
the Supreme Court of Kansas, was re-elected in 1876, and
again in 1882. In March, 1884, he was appointed Judge of
the Circuit Court of the United States for the Eighth Circuit,
and in parting from his former associates of the State Bench,
wrote an affectionate letter of farewell, expressing his appreciation of the assistance he had received from his colleagues and
his regret upon parting from them.
While a State Judge he wrote an opinion dissenting from
the majority of the Court upon the question of the power of
a municipality to issue bonds in aid of railroads,' and wrote
the opinion of the court ruling that women were eligible to
the office of County Superintendent of Public Instruction,'
since which time the State has had from one to a dozen women
Superintendents in the various counties. In the Prohibitory
cases3 he sustained the proceedings by which the Prohibitory
Amendment was adopted as a part of the State Constitution,
and in the Liquor cases4 explained and sustained the statutes
which were intended to carry it into effect. As a Circuit
Judge he ruled that a brewery built when the law sanctioned
and protected the manufacture of beer, and which was constructed with special reference to such manufacture, and which
could not, without great loss, be adapted to any other purpose,
could not, after a change of policy in the State, by which the
manufacture of beer was prohibited, be stopped from running,
until the amount of the loss had been estimated and paid to
State ex rel. v. Nemnaha County, 7 Kansas, 549 (1871).
* Wright v. Noel, 16 Kansas, 6oi (1876).
S24 Kansas, 700oo (1881).
S25 Kansas, 751 (188).
ï~~540 THE S UPR EME CO UR T OF THE UNITED S TA TES.
the proprietor,' a judgment which was subsequently reversed
by the Supreme Court of the United States.2 He also sustained the title to the Maxwell Land Grant, the largest private
land grant which has ever been sustained in this country,3 a
judgment which was afterwards affirmed by the Supreme
Court.4 He also enjoined, upon the petition of certain railroad
companies, the Railroad Commissioners of the State of Iowa
from putting into force a schedule of rates so low that the
earnings of the roads thereunder would not be sufficient to pay
operating expenses and interest on their bonds, and was the
first to challenge the dicta in the Granger cases as to the
unlimited power of the State Legislature over rates, a proposition which has since been sustained by the Supreme Court.
His perceptive faculties are quick and he works with facility and ease. The duties of his various judicial positions
have been discharged with untiring industry, acknowledged
ability and impartiality. He is energetic in the dispatch of
business and remarkable for executive ability. His social
qualities are of a high order, and he is renowned for his skill
as a raconteur. Although urged to become a candidate for
the vacancy created by the death of Mr. Justice Matthews,
he declined, saying "The office was not one to be contested,
being too high and sacred;" but his eminent qualifications were
called to the attention of the President, and it has been widely
reported that his courtesy and generosity towards his chief
competitor, Judge Henry B. Brown, of Michigan (now his associate upon the bench of the Supreme Court of the United
States), who had been his classmate at Yale, so impressed the
' State v. Walruff, 26 Federal Reporter, 178 (1886).
* Kidd v. I Pearson, 128 U. S. (1888).
3 United States v. Maxwell Land Grant Co., 26 Federal Reporter, II8 (1886).
* 12I U. S. 325 (1887).
ï~~
ï~~,
4
I.
//"i
ï~~HENRY B. BROWN.
541
Executive with his fairness, as to secure his promotion. In
character, temperament, learning, industry and experience, he
has proved himself to be a worthy member of his distinguished
family.
Through the death of Mr. Justice Miller, upon the 14th
of October, 1890, a vacancy occurred which was filled by the
appointment of Henry B. Brown, of Michigan, who was commissioned upon the 29th day of December, 1890. At the time
of his appointment he was Judge of the United States District
Court for the Eastern district of Michigan, and his is the
only instance in recent times of the promotion of a District
Judge to the highest judicial position in the land.
He was born in Lee, Massachusetts, upon the 21st of
March, 1836. His father was a manufacturer, and his mother
was a woman of exceptional strength of character. He was educated at Yale, from which he graduated in 1856, with Chauncey
M. Depew and his present associate, Mr. Justice Brewer, as
classmates. At the close of his college course he spent a year
in Europe studying languages and traveling extensively on
the Continent. Upon his return he pursued a course of study
at the Law School at New Haven, but received his degree
from the Harvard Law Department. In 1859 he went to Detroit, and there entered the office of a prominent law firm, in
which he continued until April, 1861, when he was appointed
Deputy United States Marshal and Assistant District Attorney.
He held the latter office until 1868, when Governor Crapo appointed him to fill a vacancy in the Wayne Circuit Court, the
highest court in the City of Detroit, with law and chancery
jurisdiction. Returning to the practice of his profession, he
formed a partnership with the late J. S. Newberry and Ashley
Pond. In 1875 he was appointed by President Grant District
Judge of the United States, succeeding Judge J. W. Longyear.
ï~~542 THE SUPREME COURT OF THE UNITED STATES.
His practice was almost exclusively in the United States Courts,
and his knowledge of admiralty proceedings, together with his
familiarity with the domain of criminal law made him eminent
in those branches.'
As an admiralty Judge he has tried a far larger number
of cases than any other Judge upon the Bench, and is a recognized authority in this particular field. A scholar by taste
and lifelong habit, he has delivered several addresses, a notable
one being a paper upon "Judicial Independence," read before
the American Bar Association at its Twelfth Annual meeting,2
in which he reviewed and criticised the statutes in many of
the Southern and Western States which were intended to secure
the unbiased opinion of juries upon facts, and an easy and
accurate settlement of bills of exception, "but the effect of
which was to shear the judge of his proper magisterial functions,
and to reduce him to the level of a presiding officer, or the mere
mouth-piece of counsel." In this paper he takes high ground
and reviews the history of the Judiciary from its earliest days to
the present time, contending for a tenure of office which would
remove the Judges from temptation and as far as possible from
suspicion. His style is clear, emphatic and at times picturesque.
Under the presidency of Mr. Fuller as Chief Justice, the
Court has extended, strengthened and illustrated the system
1 His most important decisions are in Ex parte Thompson, I Flippin, 507 (1876);
National Bank of Paducah, 2 Ibid., 61 (1877); The Manitoba, 2 Ibid., 241 (1878);
Phillips v. Detroit, 4 Banning and Arden Patent Cases, 347 (I1879); Burton v. Stratton,
12 Federal Reporter, 696 (1882), The James P. Donaldson, 19 Ibid., 264 (1883); The
Alberta, 23 Ibid., 807 (i885(; United States v. Clark, 31 Ibid., 710 (1887); Ex pare
Byers, 32 Ibid., 404 (1887); Saginaw Gas Light Co. v. Saginaw, 28 Ibid., 529 (1886);
Navigation Co. v. Insurance Co., 26 Ibid., 596 (1886); Brush Electric Co., 43 Ibid.,
533 (1890o); Cope v. Cope, 137 U. S. 682 (1891).
'Report of the Twelfth Annual Meeting of the American Bar Association held
at Chicago, Illinois, 1889, p. 266.
ï~~TAXING POWER OF STATES.
PU8
established under his predecessors. Although no novel doctrines have been introduced, nor has there been any departure
from well beaten paths, yet a noticeable expansion of Federal
power occurred in the establishment of the doctrine of a
Peace of the United States, and the declaration that there
existed an implied authority on the part of the Executive to
protect the Federal Judges against violence whenever there was
a just reason to believe that they would be exposed to personal
danger while executing the duties of their office. At the
same time, in the interpretation of the Commerce clause, high
water mark was reached. The work of the Court has been
performed with loyalty to the Constitution, fidelity to the
principles of Nationality, and a close, but not servile, adherence to former well-considered decisions. Legal maxims have
been applied to a vast and ever increasing mass of business
with a degree of skill and intelligence which are worthy of the
past history of the tribunal.
In the Western Union Telegraph Company v. Commonwealth of Pennsylvania,' the Chief Justice affirmed the doctrine
that a Commonwealth was not entitled to recover taxes upon
telegraph messages except in respect to those transmitted
wholly within the State, the distinction being drawn between
messages transmitted from points within to points without
the State, which were elements of inter-State commerce, and,
therefore, not subject to Legislative control; but messages
between points entirely within the State were elements of
internal commerce, solely within the limits and jurisdiction
of the State, and, therefore, subject to its taxing power."
In McCall v. Calzfornia,3 in an opinion by Mr. Justice
128 U. S. 39 (1888).
2 Compare Western Union Telegraph Co. v. Texas, 1o5 U. S. 460 (1881); Ratterman v. Western Union Telegraph Co. 127 U. S. 411 (1889). a 136 U. S. io5 (1890).
ï~~544 THE SUPREME COURT OF THE UNITED STATES.
Lamar, all the cases were reviewed, and it was declared that
no burden could be placed by States on commerce with foreign nations, or among the several States, nor could any
burden be imposed on the instruments or subjects of commerce, nor a license fee be exacted from persons in commercial pursuits.' And in Asher v. The State of Texas, a law
imposing a tax on commercial drummers, and requiring them
to obtain licenses was held to be void as applied to citizens
of other States soliciting trade.2
But the most memorable opinion delivered by the Court
since the days of Taney, when the same question was discussed, and one which attracted universal attention and provoked some excitement, was that of the celebrated "Original
Package Case" of Leisy v. Hardin,' in which the decision in
Peirce v. New Hampshire4 was distinctly overruled, it being
held that a statute of a State which prohibited the sale of
any intoxicating liquor, except for certain specific purposes
under a license from a county court, was, as applied to a
sale by the importer in the original packages or kegs, unbroken or unopened, of liquors manufactured and brought in
from another State, unconstitutional and void, Chief Justice
Fuller reviewing every case relating to the Commerce clause
from the time of Gibbons v. Ogden and Brown v. Maryland,
to the present day.
It was shown that in Congress was vested the power to
prescribe the rule by which commerce with foreign nations
and among the several States was to be governed,-a power
I To same effect see Minnesota v. Barber, 136 U. S. 313 (1890). In Home Insurance Co. v. New York, 134 U. S. 594 (189o) the power of a State to tax the corporate franchise, or business of all corporations, foreign or domestic, doing business in
a State, measured by the extent of the dividends of the corporation in a current
year, was upheld.
2 128 U. S. I29 (1888). 3 i35 U. S. Ioo (189o). 45 Howard, 504. (1847).
ï~~ORIGINAL PACKAGE CASE.
complete in itself, acknowledging no limitations other than
those prescribed in the Constitution; a power co-extensive
with the subject on which it acts, which cannot be stopped
at the external boundary of a State, but must enter it, and
be capable of authorizing the disposition of those articles
which it introduced, so that they might become mingled with
the common mass of property within the State. It was,
therefore, asserted that while, by virtue of its jurisdiction
over persons and property within its limits, a State might
provide for the security of the lives, limbs and comfort of
persons, and the protection of property so situated, yet a
subject matter which had been confided exclusively to Congress was not within the jurisdiction of the police power of
the State unless placed there by Congressional action.
After examining the decision of Chief Justice Taney in
the New Hampshire case, and conceding the weight properly
to be ascribed to the judicial utterances of that eminent
jurist, Chief Justice Fuller felt himself constrained to say
that the distinction between subjects in respect to which
there can be of necessity only one system or plan of regulation for the whole country, and subjects local in their nature,
and, so far as relating to commerce, mere aids rather than
regulations, did not appear to him to have been sufficiently
recognized by Taney in arriving at the conclusions he announced. The later authorities had distinctly overthrown the
authority of that case. After examining in detail every decision pronounced by the Court he declared:
"The conclusion follows that as the grant of the power to regulate
commerce among the States, so far as one system is required, is exclusive, the States cannot exercise that power without the assent of Congress, and, in the absence of legislation, it is left for the Courts to
determine when State action does or does not amount to such exercise,
35
ï~~546 THE SUPREME COURT OF THE UNITED STATES.
or, in other words, what is or is not a regulation of such commerce.
When that is determined, controversy is at an end.... Whatever our
individual views may be as to the deleterious or dangerous qualities of
particular articles, we cannot hold that any articles which Congress
recognizes as subjects of inter-State commerce are not such, or that whatever are thus recognized can be controlled by State laws amounting to
regulations, while they retain that character; although, at the same
time, if directly dangerous in themselves, the State may take appropriate
measures to guard against injury before it obtains complete jurisdiction
over them. To concede to a State the power to exclude, directly or indirectly, articles so situated, without Congressional permission, is to concede to a majority of the people of a State, represented in the State
Legislature, the power to regulate commercial intercourse between the
States, by determining what shall be its subjects, when that power was
distinctly granted to be exercised by the people of the United States,
represented in Congress, and its possession by the latter was considered
essential to that more perfect union which the Constitution was adopted
to create."
From this judgment and reasoning Justices Gray, Harlan
and Brewer dissented, the former delivering an elaborate opinion in which he insisted that the New Hampshire case in
Taney's time had established a wise and just rule, and was
decided upon full argument and great consideration, and
ought, therefore, to be followed; that the power of regulating or prohibiting the manufacture and sale of intoxicating
liquors properly belonged, as a branch of the police power, to
the legislatures of the several States, and could be judiciously
and effectively exercised by them alone, according to their
views of public policy and local needs; and could not practically, if it could Constitutionally, be wielded by Congress as
part of a national and uniform system; that the statutes in
question, enacted by the State of Iowa, to protect its inhabitants against the physical, moral and social evils attending the
free use of intoxicating liquors, were not aimed at inter-State
ï~~PROHIBITORY LIQUOR LAWS.
547
commerce, had no relation to the movement of goods from
one State to another, operated solely on intoxicating liquors
within the territorial limits of the State, did not include all
such liquors without discrimination, and did not even mention
where they were made, or whence they came.1
At the same time, while sustaining the power of Congress
to regulate inter-State commerce in relation to the liquor traffic, the Court has been careful to uphold in each and every
case the authority of States to regulate or suppress the evils
resulting from the manufacture and sale of liquor. Of these
cases that of Kidd v. Pearson2 stands as an example, in which
it was held, in an opinion by Mr. Justice Lamar, that a law
of Iowa authorizing the abatement as a nuisance of a distillery
used for the unlawful manufacture and sale of intoxicating
liquors, did not conflict either with the Constitution of the
United States by undertaking to regulate commerce between
the States, nor with the Fourteenth Amendment to the Constitution by depriving the owners of the distillery of their
property without due process of law. It was shown that a
State, in the exercise of its undisputed power of local administration, could enact a statute prohibiting within its limits the
manufacture of intoxicating liquors, and that that right was
not to be overthrown by the fact that the manufacturer in1It is a noteworthy circumstance how little of political bias prevails upon the
bench; the strong National view was supported by the Chief Justice and Justices
Field and Lamar, all of them Democrats, and the authority of the State was strenuously contended for by such Republicans as Justices Harlan, Gray and Brewer.
2128 U. S. I (1888). The above decision was confirmed in Lyng v. Michigan,
135 U. S., i61 (1890), but the effect of these decisions was almost immediately counteracted by an Act of Congress upholding the exercise of the police powers, of the
States under circumstances similar to those discussed in Leisy v. Hardin. In Wilkerson, Sheriff of Shawnee County, Kansas, v. Rahner, a case decided May 26th,
1891, the Constitutionality of this Act of Congress was upheld, and the leading case,
which has been reviewed in the text, becomes of historical value only.
ï~~548 THE SUPREME COURT OF THE UNITED STA TES.
tended to export the liquors when made. The language of
the Court in the License Tax Cases,' that over the internal
commerce and domestic trade of the State Congress had no
power of regulation nor indirect control, was quoted with approval, and it was shown that no interference by Congress
with the business of citizens transacted within the State was
warranted by the' Constitution, and that the fact that the article was manufactured for export to another State, did not
of itself make it an article of inter-State commerce.2
In Nashville, Chattanooga & St. Louis Railway Co. v.
State of Alabama,3 Mr. Justice Field sustained a State statute
declaring that persons afflicted with color-blindness were disqualified for service upon railway lines within the State, and
held that until Congress had legislated upon the qualifications,
duties and liabilities of employes upon railway trains engaged
in inter-State commerce, it was within the power of the State
to provide against accidents on trains while within their limits.
The independence of the executive officers of the government in the discharge of their ordinary official duties, and
their freedom from liability to coercion by mandamus, was
established by Mr. Justice Bradley in the case of United States
v. Black,4 where it was held that the Court had no right to
review the decision of the Commissioner of Pensions in refusing a pension certificate, his decision having been confirmed
by the Secretary of the Interior.
In Bank of Washington v. Hume,5 Chief Justice Fuller
S5 Wallace, 470 (1866).
2 See also Eilenbecker v. District Court of Plymouth Co., 134 U. S., 32 (1890),
and Crowley v. Christensen, 137 U. S., 86 (1890), in both of which the police
powers of a State were sustained in the regulation, mitigation and suppression
of the evils resulting from the manufacture and sale of intoxicating liquors. Another
instance where the public powers of the State were sustained is to be found in the
Oleomargarine Case of Powell v. Pennsylvania, 127 U. S., 678 (1888).
S 128 U. S. 96 (1888). '128 U. S. 40 (1888). 5 165 (1888).
ï~~EX PAR TE TERRY.
549
sustained the insurable interest of a wife and children in the
life of the husband by deciding that the creditors of one who
had insured his life for the benefit of his wife and children,
had no interest in the proceeds of the policies, nor could they
recover the' premiums paid upon policies issued upon his life for
the benefit of his wife and children in the absence of evidence
from which a fraudulent intent on the part of the latter or
the insurance company could be inferred. It' was asserted that
public policy justified a debtor in preserving his family from
suffering and want, and that the support of wife and children
constituted a positive obligation in law as well as in morals,
and that they should be protected from destitution after a
debtor's death, by permitting him to devote a moderate portion
of his earnings to sustain a security for such support.
In the interesting case of Ex parte Terry,' which grew
out of a contempt of the authority of the United States Circuit Court for the Northern District of California, under the
circumstances noticed in our sketch of Mr. Justice Field, the
Court dealt with the power to issue a habeas corpus for the
purpose of inquiring into the cause of the restraint of the
liberty of prisoners in jail under authority of the United
States. The power of a Court to punish for contempt was
declared to be inherent; a breach of the peace in open Court
was a direct disturbance and a palpable contempt, which it
was competent for the Judge presiding, immediately upon its
commission in his presence, to proceed upon his own knowledge of the facts to punish without further proof, without
issue or trial in any form.2
In close connection with the foregoing case is that known
as In re Neagle.3 No case within the past ten years has at1 128 U. S. 289 (1888). 2Affirmed in Savin, Petitioner, 131 U. S. 267 (1889).
* 135 U. S. 1 (1890).
ï~~550 THE SUPREME COURT OF THE UNITED STATES.
tracted more attention. Neagle, a Deputy Marshal, had
been directed by the Attorney General of the United States
to guard the person of Mr. Justice Field, whose life was
thought to be in danger. While the Judge was in a railway eating-house, upon his journey from one city to another,
where he expected to discharge his judicial duties, Terry
committed a violent assault and battery upon him, and so
acted that Neagle, believing that the attack would result
in the death of the Judge unless he interfered, shot him
in the act. Neagle was seized by the Sheriff of the county
upon the charge of murder, but presented to the Circuit
Judge a petition praying for his discharge. This being
granted, the Sheriff promptly appealed to the Supreme Court.
In a most elaborate opinion by Mr. Justice Miller, it was
held that the prisoner was not only justified in defending
the Judge as he had done, but that in so doing he acted in
discharge of his duties as an officer of the United States.
Therefore he could not be guilty of murder under the laws of
California. A Justice of the Supreme Court, in attending Circuit and in traveling from place to place, was as much in the
discharge of duty imposed upon him by law as he was while
sitting in Court trying causes. When attacked by Terry, he
was entitled to all the protection which the law could give
him. It was determined, in answer to the contention that
there was no statute of the United States authorizing any
such protection as that which Neagle was instructed to give,
that any obligation fairly and properly inferrible from the
Constitution of the United States or any duty of the Marshal
derived from the general scope of his duties under the laws
of the United States, was "a law" within the meaning of
the phrase as employed in Section 753 of the Revised Statutes. It was held that the President of the United States,
ï~~PROTECTION OF UNITED STATES OFFICERS.
551
charged with the duty of taking care that the laws be faithfully executed, possessed the implied power of taking measures for the protection of a Judge of one of the Courts of
the United States, and that the Department of Justice, acting
through the Attorney General, was the proper Department to
set in motion the necessary means of protection. It was further declared that there was a Peace of the United States
which was violated by an assault upon a Federal Judge while
in the discharge of his duties, and that, in such a case, a
Marshal stood in the same relation to the peace of the
United States as the Sheriff of the county did to the peace
of the State of California. It was the duty of the United
States to protect its officers from violence, even to death, in
discharge of the duties which its laws imposed upon them.
Congress had made the writ of habeas coiyus one of the
means by which that protection was made efficient. Hence
the Court reached the conclusion that the prisoner should
be discharged from the power of the State Court to try
him for any offence, because, in doing the act with which
he was charged, he did no more than was necessary and
proper for him to do. He could not, therefore, be guilty of
a crime under the law of the State. Nor was there any occasion for any trial in the. State Court, nor in any Court;
for the Circuit Court of the United States, in entertaining
the petition for a habeas corpus, was as competent to ascertain
the facts as any other tribunal.
From this judgment Mr. Justice Lamar delivered an elaborate dissenting opinion, concurred in by the Chief Justice,
planting himself upon the proposition that there were no implied powers granted by the Constitution to the Executive,
and that there was no "law," such as was meant by the
phrase in the Revised Statutes, unless some express statute
ï~~552 THE SUPREME COURT OF THE UNITED STATES.
could be pointed to. Such being the case, the killing of
Terry was not by authority of the United States, no matter by
whom done, and the only authority relied on for vindication
must be that of the State, and the slayer should be remanded
to the State Courts to be tried.
"The question then recurs," said he, "would it have been a crime
against the United States? There can be but one answer. Murder is
not an offence against the United States, except when committed on the
high seas, or in some port or harbor without the jurisdiction of the State,
or in the District of Columbia, or in the Territories, or at other places
where the National Government has exclusive jurisdiction. It is well settled that such crime must be defined by statute, and no such statute has
yet been pointed out. The United States government being thus powerless to try and punish a man charged with murder, we are not prepared to
affirm that it is omnipotent to discharge from trial, and give immunity
from any liability for trial where he is accused of murder, unless an express statute of Congress is produced, permitting such discharge."
A most important opinion delivered at this time, was that
of Mr. Justice Miller in the case of the United States v. The
American Bell Telephone Company,' a case argued by the most
eminent special counsel, with a degree of learning and an exhaustive examination of authorities almost without parallel in
the discussion of patent causes. After disposing of certain
preliminary questions of pleading, it was held that the Circuit
Court of the United States had jurisdiction in suits brought
by the United States to set aside and cancel patents for inventions for frauds committed by the parties to whom they
were issued, and that Congress did not intend by giving to
private individuals the right to set up by way of defence to an
action for infringement of a patent, that the patentee had surreptitiously obtained the patent or that he was, not the first
' 128 U. S. 315 (1888).
ï~~STATE MEDICAL CERTIFICATES.
553
inventor, to supersede the affirmative relief to which the
United States is entitled in order to obtain the cancellation of
a patent obtained by fraud. And the action of the lower
Court in dismissing a bill filed in behalf of the United States
was reversed, and the case remanded with directions to overrule the demurrer, with leave to the defendants to plead or
answer within a time to be fixed by the Court.
An interesting question as to the right of a State to require physicians to procure certificates from a State Board of
Health before attempting the practice of medicine, was considered by Mr. Justice Field in the case of Dent v. State of
West Vzirgzinzia,1 and the Constitutionality of such a law was
sustained, its object being to secure such skill and learning
in the profession of medicine that the community might trust
with confidence those receiving a license under the authority
of the State.
In Reynes v. Dumont2 the nature of a banker's lien was
elaborately discussed by Mr. Justice Field. In Gibbs v. The
Consolidated Gas Company of Baltimore3 it was held that
a corporation could not disable itself by contract from performing the public duties which it had undertaken, and that
no person could recover for services for procuring a contract
which was forbidden by statute or by public policy, where he
was privy to the unlawful design of the parties. An interesting question of trademark was discussed by the Chief Justice
in the case of Menendez v. Holt.4
In the matter of Gon-Shay-Ee6 it was held, in an opinion
by Mr. Justice Miller, that under the Act of March 3d, 1885,
where a murder had been committed by an Indian within a
Territory of the United States, that the offender was subject
S129 U. S. II4 (1889). 2 130 U. S., 354 (1889). 3 130 U. S., 397 (1888).
* 128 U. S., 514 (1888). 130o U. S., 343 (1889).
ï~~554 THE SUPREME COURT OF THE UNITED STATES.
not to the criminal laws of the United States, but to the laws
of the Territory. After a full discussion of the incidents of
trial, and a review of the whole history of the relations between the United States and the Indian tribes,' it was shown
that they were important, relating as they did to the question of
jurisdiction, and concerning the life and liberty of the party
against whom a crime is charged, and it was said to be of
consequence that in the new departur'e which Congress had
made of subjecting the Indians in a limited class of cases to
the same laws which governed the whites within the Territories
where they both resided, that the Indian should have at least
all the benefits which might accrue from that change which
transferred him as to the punishment for crime from the
jurisdiction of his own tribe to the jurisdiction of the government of the Territory within which he lived.
In the case of the Pennsylvania Railroad Company v. Miller 2 in a most elaborate opinion by Mr. Justice Blatchford, it
was held that neither the charter of the Pennsylvania Railroad
Company nor acts supplementary thereto, constituted such a
contract between the State and Company as exempted the latter
from the operation of an article in the Constitution of Pennsylvania, which required that corporations invested with the
privilege of taking private property for public use, should
make compensation for property injured or destroyed by the
construction or enlargement of their works, highways or improvements. Nor did such Constitutional provision as applied
to the Company impair the obligation of any contract between
it and the State in respect to cases arising afterwards. The
basis of the decision was that the Company had accepted its
original power subject to the general law of the State, and to
I See case of Crow Dog, o109 U. S., 556 (1883); U. S. v. Kagama, I18 U. S., 375
(1886). 2 132 U. S., 75 (1889).
ï~~POL YGAMY.
555
such changes as might be made in such general law, and
subject to future Constitutional provisions and future general
legislation. Since there was no prior contract with it, exempting it from liability to such future general legislation in
respect to the subject matter involved, no such exemption
could be admitted to exist unless expressly given, or unless it followed by implication equally clear with express
words.
A death-dealing blow was struck at Polygamy in the
great case of The Mormon Church v. The United States,' sustaining an Act of Congress by which the charter of the
Church of Jesus Christ of Latter Day Saints was repealed and
abrogated, the seizure of its property directed, and its property bestowed upon the United States as parens Pa/rie to be
devoted to other religious and charitable uses under the cy
pres doctrine.
Other subjects were considered: as the suability of States,2
Ex post facto laws,3 grants of power to municipal corporations to subscribe for stocks in railways,4 the validity of laws
inflicting the penalty of death by electricity,' which was held
not to be a "cruel and unusual punishment;" while the effect
of the Granger Cases was modified and softened,6 and a distinction drawn and pointed between cases where State Courts
1 136 U. S., 2 (1889). See also Davis v. Beason, 133 U. S., 333 (1889), and Cope v.
Cope, 137 U. S., 682 (1891); in the latter case the right of polygamous children to
inherit was sustained, on the ground of protection to innocent and unfortunate
beings.
2 Hans v. Louisiana, 134 U. S., 1 (1889); North Carolina v. Temple, Ibid., 22,
(189o) and Louisiana v. Steele, Ibid., 230 (189o).
3 Medley, Petitioner, 134 U. S., 16o (1890).
SHill v. Memphis, 134 U. S., 198 (1890).
51In re Kemmler, 136 U. S., 436 (189o).
6 Chicago, etc., Railway Co., v. Minnesota, 134 U. S., 408 (1890). Minneapolis
Railway Co., v Minnesota, Ibid., 467 (189o.)
ï~~556 THE SUPREME COURT OF THE UNITED STATES.
had or had not jurisdiction of offences growing out of elections for Presidential Electors and for members of Congress.1
Since the days of Chief Justice Taney the sessions of
the Supreme Court have been held in a crescent-shaped room
near the Rotunda of the Capitol, formerly occupied by the
Senate of the United States. The associations and traditions
of this small, though imposing chamber throng upon the
mind and detain the reverent stranger. Here Webster and
Clay contended against Calhoun, Hayne, Benton and Wright.
Here Charles Sumner appeared at the bar, on the Ist of
February, 1865, less than ten years after the decision in
Dred Scott v. Sandford had been pronounced,-and moved for
the admission of John S. Rock, of Massachusetts, a colored
man. Here the sessions of the Electoral Commission were
held, and here was the scene of many memorable arguments.
Although the system of railroads and the consequent ease of
communication with all parts of the country, as has been
observed by Mr. Justice Bradley, now enable local counsel to
argue their own cases, and have had the effect of lessening
the elevated and eclectic character of the arguments made
before the Court, yet here have appeared those redoubted
leaders, Curtis and Campbell, Charles O'Conor, David Dudley Field, William M. Evarts, William Allen Butler and
Clarkson N. Potter, of New York, Richard H. Dana, Jr., of
Massachusetts, Reverdy Johnson and S. Teakle Wallis, of
Maryland (the latter a pupil of Wirt), Jeremiah S. Black,
Brewster and Ashton, of Pennsylvania, Henry Stanbery and
James A. Garfield, of Ohio, George F. Edmunds and Edward
J. Phelps, of Vermont, Henderson, of Missouri, McDonald, of
Indiana, Merrick and Phillips, of the District of Columbia,
'In re Loney, 134 U. S., 372 (1890). In re Green, Ibid., 377 (1890).
ï~~THE PALLADIUM OF THE REPUBLIC.
57
and a host of brilliant, able and learned advocates,-duflex
gemmis auroque corona,-whose fame is a part of the glory
of the Court, and the result of whose labors has been woven
into the warp and woof of our Constitutional jurisprudence.
As the eye of the visitor sweeps from the marble busts
of the dead Chief Justices to the living figures upon the
bench and to the animated dialectician at the bar, the genius
of the place seems to speak in the stately words of Clarendon: "The law is the standard and guardian of our liberty;
it circumscribes and defends it; but to imagine liberty without law is to imagine every man with a sword in his hand
to destroy him who is weaker than himself."
With the cases reviewed in the present chapter, we conclude this history of the Court. Although many decisions,
important in their relation to the jurisprudence of the nation
and to the science of law have been necessarily passed over
in silence, yet a sufficient number of the Leading Cases of
each epoch have been selected to enable the reader to judge
of the spirit and character of the results accomplished. The
steady expansion of principles, and the vigorous as well as
irrepressible growth of the doctrine of Nationality are conspicuous phenomena. Constitutional provisions have been
vitalized; Acts of Congress have been made to breathe; situations, conditions and circumstances, unprovided for by either,
have been nurtured into living forces, presenting, when drawn
up in array, a noble and imposing body of jurisprudential
facts which, when studied and understood, will prove the best
title to renown of the distinguished jurists to whose care and
protection they were committed, the ceaseless source of the
gratitude and veneration of posterity, and the best and most
enduring bulwark of National greatness. As the safety of
Troy depended upon the preservation of the heaven-descended
ï~~558 THE SUPREME COURT OF THE UNITED STATES.
statue of Pallas, holding a spear in her right hand, and in her
left a distaff and spindle, so the Supreme Court of the United
States, enthroned in majesty and invested with power, wielding
the imperial sceptre of National Sovereignty, while jealously
guarding the rights of the States, will prove, as long as our
institutions endure, the Palladium of the Republic.
NOTE.-As these pages are passing through the press we
clip the following from the Philadelphia Ledger of May 27,
1891:
WASHINGTON, May 26.-The United States Supreme Court during
the term ended yesterday exceeded the previous highest record of cases
disposed of at one term of the Court, settling 617 cases against 470, which
had heretofore been the largest number passed upon at a single term.
The number of cases presented was unusually large, but of them only 15,
which have been argued, go over until the next term for a decision, and
it is probable that the opinions in these cases will be written during the
summer recess for announcement soon after the Court reconvenes.
Among the important suits finally decided during the term are those
of Pennsylvania and other States against the Pullman Palace Car Company, by which the company's cars are made liable to taxation; the State
of Massachusetts against the Western Union Telegraph Company, in which
the company's lines and other property are held to be subject to taxation;
the Dick Duncan case, in which an unsuccessful attempt was made to
overthrow the whole Penal Code of the State of Texas; a large number
of Chinese exclusion cases; the Northern Pacific Railroad land case, involving title to $5,000,000 worth of Northwestern lands; the Jugiro,
Wood and other New York electrocution cases; the Kansas liquor case,
decided yesterday, in which the Constitutionality of the Original Package
law was upheld; the applications of the Navassa rioters for habeas corfus
writs; a supposedly final decree in the famous Myra Clark Gaines litigation; two important army decisions construing the terms under which
private soldiers enlist; the Buffalo First National Bank suit, involving
the liabilities of bank directors for losses sustained by the banks, and
ï~~OCTOBER TERM OF I89o.
559
various important license, customs, tax, patent and habeas corpus cases,
and suits involving responsibility for personal injuries.
The only cases of general importance which go over are those of the
State of Maine v. the Grand Trunk Railway Company and the Singer
Machine Company v. Wright, State Comptroller, involving questions of
taxation, and the United States.against the Missouri, Kansas and Texas
Railroad Company, in which titles to large tracts of land are in dispute.
The Court has set down a number of very important matters for argument before a full Bench immediately after the Court re-assembles in
October, and the first two or three weeks will probably be devoted to
hearing causes of National importance. Among those so assigned are the
Behring Sea suit, the Counselman case, as to the right of the Inter-State
Commerce Commission to compel witnesses to testify, the Baltimore and
Ohio theatrical rate controversy, and the test suit with regard to the Constitutionality and validity of the McKinley Tariff and Customs Administrative Acts.
It is probable that under the recent Act of Congress,
establishing an intermediate Court of Appeals, the number of
cases that will finally reach the Supreme Court will be very
considerably reduced.
ï~~560 THE SUPREME COURT OF THE UNITED STATES.
CHAPTER XXI.
REPORTERS OF THE DECISIONS OF THE SUPREME COURT
OF THE UNITED STATES.
ALEXANDER JAMES DALLAS.
THE first Reporter of the Decisions of the Supreme Court
of the United States, although not officially appointed, was
Alexander James Dallas, who was born on the Island of Jamaica on the 21st of June, 1759, and died in Trenton, New
Jersey, upon the 14th of January, 1817. He was the son of
a Scotch physician, who had emigrated to Jamaica, and resided there several years. Young Dallas was educated in
Edinburgh and at Westminster. While a student, he made
the acquaintance of Dr. Johnson, the celebrated lexicographer,
and of Dr. Franklin, who was then pleading before the
Privy Council the rights of the Assembly of Pennsylvania
against the Proprietaries. He studied law in the Inner
Temple, and returned to Jamaica in the year 1780, and
upon his mother's second marriage removed in April, 1783,
to Philadelphia, where he took the oath of allegiance to the
Commonwealth of Pennsylvania. A few years later he was
admitted to practice, and became eminently successful as a
lawyer, ranking among the leaders of the bar. His name appears in all the prominent cases, and in January, 1791, he
was appointed Secretary of the Commonwealth of Pennsylvania, and in December, 1793, his commission was renewed.
ï~~ALEXANDER J. DALLAS.
561
During this time he was editor of the Columbian Magazine.
He prepared an edition of the " Laws of Pennsylvania with
notes," and also compiled his four volumes of "Reports of Cases
ruled and adjudged by Courts of the United States and Pennsylvania before and since the Revolution," which were published in Philadelphia, and which constitute the earliest series
of American Reports. He served as Paymaster-General to the
armed forces at Pittsburgh in 1794, and became again Secretary of State of Pennsylvania in 1796. He was appointed by
President Jefferson United States District Attorney for the
Eastern District of Pennsylvania, serving from 18oi until
1814, and conducting many famous prosecutions, notably that
against General Michael Bright and others, for forcibly obstructing Federal process. In 1814 he was appointed by
President Madison Secretary of the Treasury. During his
administration of this Department he displayed great ability
and did much to sustain the public credit, while his energetic
measures advanced the value of Treasury notes. To him is
due the credit of re-establishing the United States Bank in
1816. The Bill as first passed had been vetoed by Madison
in the preceding year, but a similar measure was subsequently
approved and the Bank established owing to the influence of
Mr. Dallas and his explanation of the necessity and efficiency
of such a means to sustain and improve the credit of the
Government. Mr. Dallas also discharged the duties of Secretary of War, and having fully succeeded in rescuing the
Government from a financial crisis, retired from office and
returned to Philadelphia, but died a few weeks later. He also
published Treasury Reports, "Features of Jay's Treaty,"
Philadelphia, 1795; "Speeches on the Trial of Blount,"
"Address to the Society of Constitutional Republicans," 1805,
and "Exposition of the Causes and Character of the War of
36
ï~~562 THE SUPREME COURT OF THE UNITED STATES.
18I2." He left unfinished a " History of Pennsylvania." His
son, George Mifflin Dallas, became Vice-President of the
United States in 1845, and died in 1864. He had prepared
for the press the "Life and Writings of A. J. Dallas," which
was published in I871.
WILLIAM CRANCH.
The first regularly appointed Reporter of the Decisions of
the Supreme Court of the United States and the successor of
Mr. Dallas was William Cranch, who was born at Weymouth, Mass., July 17th, 1769, and died at Washington on
the ist of September, 1855. His father, Richard Cranch, was
a native of England, and for many years was a member of
the Massachusetts Legislature, a Judge of the Court of Common Pleas, and the author of "Views of the Controversies
concerning Anti-Christ." His son graduated at Harvard in
1789, studied law, and was admitted to the Bar in July, 1790.
After three years' practice in the Courts of Massachusetts
and New Hampshire, he removed to Washington, and in i8oi
was appointed by President Adams Assistant Judge of the
Circuit Court of the District of Columbia. In 18o05 President
Jefferson made him Chief Justice of this Court, which position
he held until 1855. During this period only two of his decisions were overruled by the Supreme Court of the United
States. Among the last services imposed upon him by Congress was the final hearing of patent causes after an appeal
from the Commissioner of Patents. He published nine volumes of the Decisions of the Supreme Court of the United
States, and six volumes of Reports of Decisions of the Circuit
Court of the District of Columbia from i8oi to 1814. He
also prepared a Code of Laws for the District, and published
ï~~HENRY WHEATON. 6
568
in 1827 a "Memoir of John Adams," and in 1831 an address
upon "Temperance."
HENRY WHEATON.
The third Reporter of the Decisions of the Supreme Court
was Henry Wheaton, who was born in Providence, Rhode
Island, upon the 27th of November, 1785, and died at Dorchester, Mass., on the I Ith of March, 1848. His father,
Robert Wheaton, was a Baptist clergyman, who emigrated
from,Wales to Salem, Mass., but subsequently settled in
Rhode Island. Henry graduated from Brown University in
1802, and studied law with Nathaniel Searle, was admitted
to the Bar in 1805, and in the same year continued his
studies in Poitiers and London. Returning home, he practiced in Providence until 1812, when he removed to New
York, where he edited for three years the National Advocate,
the organ of the Administration party. He published in this
paper notable articles on questions of neutral rights in connection with the existing war with England. In 1814 he
became a Judge Advocate in the army, and in 1815 a Justice
of the Municipal Court of New York City, serving until
1819. From 1816 to 1827 he was the Reporter of the Supreme Court of the United States, and published twelve volumes, which were printed in New York. He was an intimate
friend of Mr. Justice Story, from whom he received much
encouragement and assistance in his studies of international
law and in the work of, reporting the decisions of the Supreme Court. In fact, many of the learned and elaborate
notes upon questions of international law and upon the practice of Admiralty and Prize Courts, which are published in
the appendices to his volumes, were written by that eminent
ï~~564 THE SUPREME COURT OF THE UNITED STATES.
jurist. Many of the most famous decisions of Marshall appear in his pages, and his work was termed by a German
reviewer, "The Golden Book of American Law." William
Beach Lawrence says: "The reputation which Mr. Wheaton
acquired as a reporter was unrivaled. He did not confine
himself to a mere summary of the able arguments by which
the cases were illustrated; but there is scarcely a proposition
on any of the diversified subjects to which the jurisdiction of
the Court extends that might give rise to serious doubts in
the profession that is not explained, not merely by a citation
of authorities adduced by counsel, but by copious views which
the publicists and civilians have taken of the questions." He
was a member of the New York Constitutional Convention in
1821, and of the New York Assembly in 1823 and 1825,
and was associated with John Duer and B. F. Butler on the
Commission to revise the Statute Laws of New York. In 1827
he became Charge d'Affaires in Denmark, and was the first diplomatist from the United States who acquired a reputation in
Continental languages and literature. He became a member
of the Icelandic Society. In 1835 he was appointed Resident
Minister at the Court of Prussia, and in 1837 was made Minister
Plenipotentiary. He received full power to conclude a treaty
with the Zollverein, pursuing this object for six years. Upon
the 25th of March, 1844, he signed a treaty with Germany,
for which he received high commendation from President
Tyler and from John C. Calhoun; the treaty was rejected
by the Senate, but served as a basis for subsequent agreement. In 1846 he was recalled by President Polk, but
the act provoked public condemnation. Mr. Wheaton, however, complied, and on his return to the United States
was honored by public dinners in New York and Philadelphia, and was at once chosen lecturer on International
ï~~WHEA TON'S INTERNATIONAL LA W. 565
Law at Harvard University. This place he was too ill
to accept. He was a corresponding member of the French
Institute, and a member of the Royal Academy of Berlin. Brown University conferred the degree of LL.D. upon
him in 1819, and Harvard in 1825. He delivered many
public addresses, those before the New York Historical Society on the Science of Public or International Law being
published in 1820. His most important work is entitled
"Elements of International Law," published in Philadelphia
in 1831 in two volumes, and in London in the same year.
The work was translated into French, and published at
Leipsic and Paris in 1848. It was at once acknowledged
as a standard authority, and has also been translated into
Chinese, and was published at the expense of the Imperial
Government in four volumes at Pekin in 1865. It was also
translated into Japanese, and the eighth edition appeared in
Boston in 1866. This edition unfortunately gave rise to an
unpleasant controversy between its annotator, Hon. Richard
H. Dana, Jr., and Hon. W. B. Lawrence, who had edited the
sixth edition. Mr. Wheaton published also "Considerations on
Establishing a Uniform System of Bankrupt Laws throughout the United States," "A Digest of the Decisions of the
Supreme Court of the United States from its Establishment
in 1789 to 1820," a "Life of William Pinkney," published in
New York in 1826, and a "History of the Northmen," published in London in 1831 and translated into French in 1844.
His "Histoire du Progres du Droit des Gens en Europe,"
published in 1841, was translated into English in 1845 under
the title, "A History of the Law of Nations in Europe and
America." It is still the leading work on the subject of
which it treats.
ï~~566 THE SUPR E ME COURT OF THE UNITED S TA TES.
RICHARD PETERS.
Mr. Wheaton was succeeded as Reporter by Richard
Peters, who was the son of the Hon. Richard Peters, United
States District Judge of the District of Pennsylvania, and a
member of the old Continental Congress. He was born at
Belmont, Philadelphia, on the 17th of August, 1780, ahd died
on the 2nd of May, 1848. He studied law and was admitted
to the Bar in 18oo, and was Solicitor of Philadelphia County
from 1822 to 1825, and one of the founders of the Philadelphia Savings Fund, the oldest institution of that kind in
Pennsylvania. He published seventeen volumes of "Decisions of the Supreme Court of the United States," from
1828 to 1843; also "Reports of the Decisions of the United
States Supreme Court " from 1803 to 1818, published at Philadelphia in 1819; also "Condensed Reports of Cases in the
Supreme Court of the United States, from its organization
until 1827," in six volumes, which were published in 1835,
and a full and well-arranged " Digest of Cases determined in
the Supreme, Circuit, and District Courts of the United States
from the period of organization," contained in three volumes,
bringing the decisions down to 1839, and a new edition in
two volumes, bringing them down to 1848. He edited "Chitty
on Bills of Exchange," in three volumes, and Washington's
"Circuit Court Reports," in four volumes, the former being
published in 1819, the latter between 1826 and 1829.
BENJAMIN CHEW HOWARD.
Mr. Peters was succeeded by Benjamin Chew Howard,
who was born in Baltimore County, Maryland, on the 5th of
September, I791, and died upon the 6th of March, 1872. He
ï~~HOWARD AND BLACK.
567
was the son of Governor John Eager Howard, who had displayed his gallantry at the battles of Cowpens and Eutaw
Springs. He was also the grandson of Benjamin Chew, who
was Chief Justice of Pennsylvania before the Revolution. Mr.
Howard graduated at Princeton in 18o9, studied law, and practiced in Baltimore. In 1814 he assisted in organizing troops
for the defence of his native city, and commanded the "Mechanical Volunteers" at the battle of North Point, upon the 12th
of September, 1814. From r829 to 1833 he was a member
of Congress, having been elected as a Democrat, and again
from 1835 to 1839, when he served as Chairman of the Committee on Foreign Relations, and drew up its report on the
Northeastern Boundary question. In 1843 he was appointed
Reporter of the Supreme Court of the United States, and
held that post until 1862, publishing twenty-four volumes of
Reports. In February, 1861, he was a delegate to the Peace
Congress, which vainly tried to avert civil war. Princeton
College conferred upon him, in I869, the degree of LL.D.
JEREMIAH S. BLACK.
His successor was Jeremiah Sullivan Black, who was born
in the Glades, Somerset County, Pennsylvania, upon the ioth of
January, i8io, and died at York, in that State, on the 19th of
August, 1883. He was of Scotch-Irish descent, his grandfather being James Black, who came to this country from
the North of Ireland and settled in Somerset County, Pennsylvania, where his son Henry, the father of Jeremiah, was born
in 1778, and became a noted man. Jeremiah studied law in the
office of Chauncey Forward, a lawyer of Somerset County, and
was admitted to the Bar in 1831. After eleven years of successful practice, he was raised to the Bench. A Jeffersonian
ï~~568 THE SUPREME COURT OF THE UNITED STATES.
Democrat, he was nominated in September, 1842, to be President Judge of the District where he lived, and held this post
for nine years. In 1851 he was elected by popular vote a
Judge of the Supreme Court of Pennsylvania, and having
drawn the lot for the short term, became thereby Chief Justice. He was then re-elected, in 1854, as an Associate Justice
for the full term of fifteen years but resigned to become
Attorney-General of the United States in President Buchanan's Cabinet in 1857. In i86o he was appointed Secretary of
State, and was succeeded by Edwin M. Stanton as AttorneyGeneral. He maintained the duty of the Federal Government
to defend itself against insurrection. He retired in 1i86i, and
was appointed Reporter of the Decisions of the Supreme Court
of the United States, but after publishing two volumes, resigned
his post, and resumed his practice of law in York. During
the later years of his life he became one of the leaders of
the Bar of the Supreme Court of the United States, and was
engaged in the most important causes, retaining his vigor and
professional ability to the end. His arguments firmly established his reputation as an advocate of surpassing power. He
was one of the counsel who appeared before the Electoral
Commission in 1877, was a frequent contributor to periodical
literature, entered into a newspaper discussion with Jefferson
Davis, and also engaged in theological controversy with Robert
G. Ingersoll. He was a follower of Rev. Alexander Campbell, the founder of the religious body calling themselves
"Disciples of Christ."
JOHN WILLIAM WALLACE.
The seventh Reporter was John William Wallace, a son
of John Bradford Wallace, a noted lawyer of the Philadel
ï~~WALLACE AND OTTO. 569
phia bar. He was born in Philadelphia upon the 17th of February, 1815, and died there on the 12th of January, 1884.
He was a graduate of the University of Pennsylvania in 1833,
studied law in Philadelphia and subsequently in the Temple
at London, and became a standing Master in Chancery in the
Supreme Court of Pennsylvania in 1844. He was Reporter of
the Third Circuit of the United States Circuit Court, publishing
three volumes of decisions from 1842 to 1853, and in 1863
was appointed Reporter of the Supreme Court of the United
States, publishing its decisions from that time, in twenty-three
volumes until 1876. From 186o to 1884 he was President of
the Historical Society of Pennsylvania. He also published
"The Reporters," chronologically arranged, with occasional
remarks upon their respective merits (Philadelphia, 1843). He
edited and revised many works, and was the author of many
learned and scholarly addresses on historical subjects.
WILLIAM TODD OTTo.
The eighth Reporter was William Todd Otto, who was
descended from a long line of physicians, one of whom emigrated from Germany in the year i1752, and served in the
Hospital at Valley Forge during the War of the American
Revolution, while his son was an officer in the army during the same struggle. Mr. Otto was born in Philadelphia
on the 19th of January, 181 7, graduated from the University
of Pennsylvania in 1833, studied law under Joseph R. Ingersoll, an eminent practitioner and eloquent advocate, and moved
to Indiana where he was admitted to the Bar. He followed
his profession until 1844, when he held the office of Judge of
the District Court of Indiana for six years, also serving as
Professor of Law in the University of Indiana, from which in
ï~~570 THE SUPREME COURT OF THE UNITED STATES.
stitution he received the degree of LL.D. In 1871 he was
appointed arbitrator in behalf of the United States in the Convention with Spain for the settlement of claims of citizens of
this country. Upon Mr. Wallace's resignation Mr. Otto was
appointed Reporter of the Supreme Court of the United
States, and held the post from 1875 to 1882, publishing
sixteen volumes.
JOHN C. BANCROFT DAVIS.
The present Reporter of the Supreme Court is John C.
Bancroft Davis, the son of Hon. John Davis, of Union, Massachusetts, and a nephew of George Bancroft, the historian.
The father was a United States Senator, and a noted advocate of the policy of Protection. The son was born at
Worcester, Mass., on the 29th of December, 1822, graduated from Harvard in 1840, read law, and entered upon
an active practice. In 1849 when his uncle, Mr. Bancroft, left
the English Court, he succeeded John R. Brodhead as Secretary of the Legation, and acted as Charg6 d'Affaires for several months in that and the two succeeding years. He resigned in 1852, and became the American correspondent of the
London Times from 1854 to 1861, and during that time practiced law in New York City. In 1868 he was a member of the
New York Legislature, and the following year was appointed
Assistant Secretary of State. In I871 he became the American Secretary of the High Joint Commission that concluded
the Treaty of Washington. He prepared the American case
for submission to the Geneva Tribunal of Arbitration on the
Alabama claims, and served as the Agent of the United
States in prosecuting those claims before that High Court.
In January, 1873, he returned to the United States and re
ï~~J. C. BANCROFT DA VIS.
571
sumed his place as Assistant Secretary of State. While holding this office he acted as arbitrator in disputes between
Great Britain and Portugal. In July, 1874, he was appointed
United States Minister to the German Empire. Upon his
return from the Berlin mission, he was made Judge of the
United States Court of Claims, in the District of Columbia,
and served from January, 1878, until December, 1881. He
was then again appointed Assistant Secretary of State, but
resigned after six months' service. In November, 1882, he
was re-appointed Judge of the Court of Claims, and on the
5th of November, 1883, became the Reporter of the Decisions
of the Supreme Court of the United States. He has published United States Reports, Volumes io8 to 138 inclusive.
He is a painstaking and accurate historian, thoroughly imbued with the true historical spirit, and has classified and
arranged the precious but almost forgotten matter of historical interest in the Clerk's Office of the Supreme Court. He
has rescued and had printed in the appendices to his Reports much valuable historical matter relating to the judicial
functions of the Government prior to the adoption of the
Constitution. He has also published omitted cases in the
Appendix to Volume 13i, U. S. Reports. He has annotated
an edition of the Treaties of the United States, and published
in French a treatise on the practice of American Courts.
CLERKS OF THE SUPREME COURT.
'The first Clerk of the Supreme Court of the United
States was JOHN TUCKER, the selection of Chief Justice Jay,
who spoke in terms of high praise of his courtesy and affability. He was a native of Newbury (Old Town), Massachu
ï~~572 THE SUPREME COURT OF THE UNITED STATES.
setts, where he was born on the iith of August, 1753. The
son of an eminent divine, he was carefully educated at Dummer Academy, at that time one of the best schools in New
England. In 1770 he entered Harvard University, and graduated in 1774. After spending some years in the study of
the law, he was appointed in 1783 junior clerk of the Supreme Judicial Court of Massachusetts. While holding this
position, he was summoned on the 3rd of February to New
York, then the seat of the National Government, to open the
books of record of the Supreme Court of the United States.
A fac simile of his hand-writing upon the first pages of the
minutes, which are interesting as recording the events connected with the actual organization of the Court, is to be
found in the Appendix to the 134th Volume U. S. Reports,
p. 712. His hand-writing was round and clerkly; but he
consistently misspelled the name of Mr. Justice Wilson,-a
fact to which Mr. Davis, the present reporter of the Court,
calls attention.
On the ist of August, 1791, he resigned his place, and
returned to Boston, resuming his duties as Clerk of the
Supreme Judicial Court of Masachusetts, and continued in
this place until his death on the 27th of February, 1825.
He is said to have been a very popular man, well known
throughout the State as "Clerk Tucker," or as "Judge
Tucker." He was a man of commanding figure, and those
who remembered him spoke of him as wearing a cheery
countenance which was in itself "a perfect benediction."
The second Clerk of the Court was SAMUEL BAYARD, the
fourth son of Col. John H. Bayard, of the distinguished Delaware family of that name. He was born in Philadelphia on
the i Ith of January, 1767, and died at Princeton, N. J., on
ï~~BA YARD AND CALD WELL.
578
the 12th of May, 1840. After a preparatory course at grammar schools he entered Princeton College, and graduated in
1784 as the valedictorian. He subsequently studied law and
practiced actively for seven years in Philadelphia. His appointment as the successor of Mr. Tucker was made upon the
first of August, 1791, and he held the place until August 15,
18oo. During the greater part of his term, however, he
was absent and his duties were performed by Elias B.
Caldwell. After the ratification of Jay's Treaty in 1794, Mr.
Bayard was appointed by President Washington as agent of
the United States to prosecute claims before the British Admiralty Courts, and this led to a residence in the City of London for four years. Upon his return to this country he went
to New Rochelle, New York, and was appointed by Governor
Jay Presiding Judge of West Chester County. In 1803 he
resigned this office, removed to New York City, and resumed
the practice of the law. Three years later he purchased an
estate at Princeton, N. J., and was for several years a member
of the State Legislature, and for some years acted as Presiding Judge of the Court of Common Pleas of Somerset County.
He was one of the founders of the Princeton Theological Seminary, and was an unsuccessful candidate for Congress upon
the Federalist ticket in 1814.
The third Clerk was ELIAS B. CALDWELL, named after
Elias Boudinot, who among his many claims to distinction was the first to be admitted to the bar of the Supreme
Court of the United States. Mr. Caldwell was born on the
3d of April, 1776. His mother was murdered by a British
soldier when he was but two years old, and three years later
his father, the Rev. James Caldwell, was murdered in cold
blood by an Irish soldier. The orphan boy was then adopted
ï~~574 THE SUPREME COURT OF THE UNITED STATES.
by the celebrated man for whom he was named. After a preliminary education he entered Princeton College and graduated
in 1796. While Mr. Bayard was absent he acted as Clerk of
the Supreme Court of the United States, and on August 5th,
x8oo, was duly appointed Clerk, serving until his death in
1825. He was one of the principal founders, in 1817, of the
American Colonization Society, and was a zealous advocate of
African colonization. His name was given to one of the towns
of Liberia. He had been licensed as a preacher by the Presbytery, and was accustomed to occupy vacant pulpits on the
Sabbath.
WILLIAM GRIFFITH, the fourth Clerk, was the son of a
physician of Bound Brook, Somerset Co., N. J., and was born
in the year 1766. He studied law in the office of Elisha
Boudinot at Newark, was licensed as an attorney in 1778, and
in due time became a counsellor, and in i1788 was called to
be a Sergeant. He became a learned lawyer, and a very
able advocate, acquiring a large practice, devoting himself to
business with indefatigable industry, and mastering the land
titles of his native State, and the doctrines of the common law
relating to real estate. In 1796 he published a treatise on the
'jurisdiction. and proceedings of justices of the peace, with an
appendix containing advice to executors and administrators,
and an outline of the law of landlord and tenant. Three
years later he published a series of essays exposing the defects of the Constitution of his native State and urging a popular convention to revise it. He held the office of Surrogate
and in i8oi was. appointed one of the Judges of the United
States Circuit Court for the Third Circuit, his associates being
William Tilghman, afterwards Chief Justice of Pennsylvania,
and Richard Bassett, the Chief Justice of Delaware, and is
ï~~GRIFFITH AND CARROLL.
575
thus known to fame as one of "the midnight judges." The
causes decided by this court, which was in existence but a
year, are to be found in a small volume entitled " Reports of
Cases Adjudged in the Circuit Court of the U. S. for the
Third Circuit," by John B. Wallace. Resuming business as
an advocate, he met with but little success, and engaged in
unfortunate land speculations, and the business of manufacturing woolen and cotton goods, of which he was ignorant. He
then became a member of the Legislature, and exercised a
powerful influence. He prepared three volumes of the "Annual Register of the United States" and wrote "Historical
Notes of the American Colonies and Revolutions from 1754
to 1775." Upon the death of Mr. Caldwell, he was appointed
Clerk of the Supreme Court of the United States, but died
within a few months.
The fifth Clerk was WILLIAM THOMAS CARROLL, who
was born at Bellevue, Maryland, on the 2d of March, 1802.
After receiving an ordinary English education, he was sent
to Emmitsburg, from which he graduated at the early age
of twenty years. He studied law at Litchfield, Connecticut;
was admitted to the Bar, and shortly afterwards was appointed
lecturer at the Law Department of Columbia College, in tht
District of Columbia. His appointment as Clerk of the Supreme Court of the United States was dated January 28th,
1827, and he continued to discharge the duties of this office
until his death, on the I3th of July, 1863. Chief Justice
Taney said: "When we are appointing a successor to Mr.
Carroll, it is but justice to his memory to say, that he was
an accomplished and faithful officer, prompt and exact in
business, and courteous in manner, and during the whole
period of his judicial life discharged the duties of his office
ï~~576 THE SUPREME COURT OF THE UNITED STATES.
with justice to the public and the suitors, and to the entire
satisfaction of every member of the Court."
The sixth Clerk was the well-remembered DANIEL WESLEY MIDDLETON, who for more than fifty-three years was
closely connected with the work of the Court. He was
born on the first of May, 1805, and died on the 27th of
April, 188o At the time of Mr. Carroll's appointment, in
1827, Mr. Middleton, at the age of twenty-two, was acting as
an assistant to the Clerk, and was immediately promoted to
the position of deputy. His handwriting first appears on the
records of the Court under date of the 7th of February, 1825.
From that time until his death, he was, without interruption,
as remarked by Chief Justice Waite, actively engaged in the
business of the office, and even a whisper of complaint against
him in any particular never reached' the ears of the Court.
He had seen Marshall, Taney, Chase and Waite upon the
bench. Three Chief Justices and eighteen Associate Justices
died after his service began. He had listened to Pinkney,
Wirt and Webster at the bar; he had seen John Adams and
Thomas Jefferson, and could state with clearness, fourteen
years after the close of the Civil War, his recollections of
them. Born within an arrow's flight of the Capitol, he had
seen, in 1814, the Capitol in flames, and a new edifice arise,
and for nearly sixty years had lived daily beneath the dome.
Upon the death of Mr. Carroll, in 1863, he was appointed
his successor by the unanimous vote of the Court. Discreet,
urbane, courteous and painstaking, the benevolence and gentleness of his character endeared him to both bench and bar.
The present Clerk of the Supreme Court is JAMES HALL
MCKENNEY, who was born on the 12th of July, 1837, near
ï~~JAMES HALL McKENNE Y.
577
Bel-Air, in the State of Maryland. He became a resident of
Washington City in December, 1845, and in 1853 entered the
office of the Clerk of the United States Circuit Court for the
District of Columbia. Five years later he was appointed
junior clerk of the Supreme Court of the United States by
Mr. Carroll, and on the appointment of Mr. Middleton as
Clerk, became the acting deputy, and after the authorization
by law of the appointment of a Deputy Clerk, by the
United States Circuit Courts, he was appointed to that position, which he occupied until the loth of May, 188o, when
he was selected by the Supreme Court of the United States
as Mr. Middleton's successor. The unanimity of the Bench
in voting for him was marked by the exertions of Mr. Justice Hunt, who, although confined to the house by serious
illness, and not having been to the Court room for several
months, left his chambers and went to the Capitol to declare
his appreciation of Mr. McKenney by casting his vote for
him.
Mr. McKenney was also elected and served as the Secretary of the Electoral Commission in 1877.
Closely associated for many years with the work of the
Court, deeply interested in the history of the tribunal, and
guarding its precious records with jealous care, vigilant, attentive and courteous, collecting with diligence the traditions
of the Court, and making the only collection of the portraits
of the Clerks known to exist, he has on all occasions upheld
the hands of those interested in preserving and extending the
history and influence of the tribunal, and has given universal
satisfaction to the members of both bench and bar.
87
ï~~
ï~~THE PROCEEDINGS IN CELEBRATION
OF THE
CENTENNIAL ANNIVERSARY
OF THE
FOUNDATION AND ORGANIZATION OF THE SUPREME
COURT OF THE UNITED STATES,
HELD IN THE CITY OF NEW YORK, FEBRUARY 4TH, 1890.
(579)
ï~~$
ï~~AN ACCOUNT
OF THE
CENTENNIAL ANNIVERSARY
OF THE
ORGANIZATION OF THE SUPREME COURT
OF THE UNITED STATES.
ON the 4th of February, 1790, at the Exchange in the
City of New York, the Supreme Court of the United
States was organized and held its first session.
It was eminently fitting that there should be a National
Celebration of The Centennial Anniversary of an event so
novel in the history of the world, so far reaching in its consequences, so beneficent in its results, and so fraught with
blessings to this country. The President of the United States,
in his Inaugural Address of the 4th of March, 1889, suggested
the propriety of its observance, and The New York State Bar
Association, at the instance of Elliott F. Shepard, Esq., adopted
a suitable Resolution, by which a Committee of Arrangements
was appointed "to take measures to celebrate on the first
Tuesday of February, 1890, the one hundredth anniversary
of the institution of the Judicial Department of the National
Government, by the organization of the United States Supreme
581
ï~~582 THE SUPREME COURT OF THE UNITED STATES.
Court on the first Tuesday of February, 1790, in the City of
New York."
The Committee was authorized to add to their own numbers, and to invite the co-operation of such other associations
and citizens as they thought proper. Of this Committee,
Hon. William H. Arnoux, President of the Association, was
appointed Chairman. Under the power conferred upon him,
he selected seventy gentlemen as his associates, all of whom
accepted the positions assigned to them except His Excellency
David B. Hill, Governor of the State of New York, who,
anticipating the necessity of legislative action requiring his
official concurrence, declined from motives of delicacy.
Among those accepting were Ex-President Cleveland and
Vice-President Levi P. Morton, who wrote in terms expressive
of their interest in the celebration, and of their willingness
to promote its success.
One of the rooms of the Circuit Court of the United States
in the Post Office Building was secured through the courtesy
of the Secretary of the Treasury, and on the 3oth of September, 1889, the Committee held its first meeting and the Chairman delivered the following address:
"GENTLEMEN:
On the First Tuesday of February, 1790, the Supreme
Court of the United States, under the Chief-justiceship of
John Jay, a citizen of this State, thus highly honored by
Washington, held its first session in the City of New York,
then the seat of the Federal Government. Prior to that time
the executive and legislative branches of the Government had
been successfully put in operation, but the judicial functions,
the consummate flower of the wisdom of the framers of the
Constitution, were tested last of all.
ï~~ADDRESS OF MR. ARNOUX.
588
The institution of a Judicial body so comprehensive and
far-reaching, so implicitly trusted and obeyed, so republican
in form and final in effect was, to the absolutism of Europe, a
bold innovation, a stupendous experiment. It was unparalleled
in the world's history. Now it is no longer an experiment,
with cavil or misgiving, but a monumental and rounded fact.
The Executive, with a million soldiers at his command,
the Congress of the United States, with its power, forty
States, sovereign in their sphere, and sixty-five millions of
people occupying a continent, a proud and liberty-loving people, jealous of their rights, bow to the decree of a Tribunal
of nine Civilians that has not a single sword to enforce its
judgments, and has to depend upon the Executive for its personal protection. A century has rolled away in which it has
never in a single instance been successfully defied. What a
sublime spectacle of the reign of law; realizing the aphorism,
'Beneath the rule of men entirely great, the pen is mightier
than the sword.'
From first to last its dignity has been maintained and
preserved, and when we consider the conflicting interests and
the prejudices of the vast and complicated nationalities, States,
Territories and peoples, we are amazed at the result.
This august Tribunal, under the leadership of John
Marshall, as a jurist the peer of Lord Mansfield, England's
greatest judge, cemented and bound together the foundations
of the Republic and made a nation possible. Without it the
Union would have simply been a rope of sand.
When France, imitating our example, lifted aloft the
torch of Liberty to enlighten the World, the centennial of
which she so grandly celebrates this year, in her unrivalled
Exposition, and still more grandly in her recent elections,
which have renewed her allegiance to Republicanism, she did
ï~~584 THE SUPREME COURT OF THE UNITED STATES.
not or could not adopt our Judicial system. If that had been
possible, perhaps her liberties, like ours, would never have
suffered an eclipse.
No centennial deserves a more hearty recognition from
the people, nor appeals so strongly to our own profession.
It was eminently proper that the New York State Bar Association should take the initiative and resolve to suitably celebrate this most important national anniversary, and that one
of its former presidents should have performed the graceful
task of reminding us of our duty and opportunity.
We meet, not to discuss or criticise the Court. The
common consensus of the learned, the thoughtful, and the
wise, of experienced statesmen and jurists in all nations, has
already preceded us in appreciating the wonderful success of
an institution exclusively American, the conclusive arbiter in
all our contentions; and they have awarded us honorable and
unreserved praise. But we meet, on broadest grounds of
patriotism and gratitude, to acknowledge and celebrate its worth
and its beneficent results, to recognize the great debt which we
as a nation owe it, so that in the records of History there may
be proof anew that Republics are not always indifferent or
ungrateful.
To make this celebration worthy of its importance we
should endeavor to secure the co-operation of the Nation and
of all the States of the Union and the attendance of representatives from all other countries. We should invite the influential, the intellectual, the cultured and especially the Bench
and the Bar throughout our broad country to join us in doing
homage to this august Tribunal. Public officials, private citizens, and professional men should meet on this occasion animated by a common purpose.
This result can be attained by proper committees to be
ï~~ORDER OF EXERCISES ADOPTED.
585
appointed by the gentlemen here assembled. I deemed my
authority, under the resolution adopted by an Executive Committee, to be limited to our membership and confined my
designations accordingly, but no such limitation is placed upon
the Committee. I recommend additions of gentlemen not on
our rolls and that auxiliary committees be appointed in other
States especially to secure as large an attendance of the Judiciary as possible.
And I am assured that the officers, particularly our Secretary, and the members of the Executive Committee, will at all
times heartily co-operate with this Committee in furthering
the celebration of the Judiciary Centennial."
Mr. William B. Hornblower was then chosen Secretary,
a selection which was subsequently made permanent. A subcommittee on Plan and Scope with William Allen Butler, Esq.,
as Chairman, was appointed to draft an Order of Exercises
which was reported to a subsequent meeting and adopted in
all its details. It provided that Ex-President Cleveland should
be the presiding officer upon the Memorial Occasion; that four
addresses should be delivered by gentlemen of professional
eminence, representing the New England, Middle, Southern
and Western States, respectively. The topics of each address
were to be: The Constitution and the Sovereignty of the People; The Origin of the Supreme Court of the United States
and its Place in the Constitution; The Supreme Court and the
Constitution; The Personal Characters of the Chief Justices.
The Orators chosen were Hon. Edward J. Phelps, of Vermont; William Allen Butler, Esq., of New York; Hon. Henry
Hitchcock, of Missouri, and Thomas J. Semmes, Esq., of Louisiana. The Musical parts of the programme were to be furnished by the Symphony Orchestra of the Metropolitan Opera
ï~~586 THE SUPREME COURT OF THE UNITED STATES.
House, which had volunteered its services through Mr. Edmond
C. Stanton; and the German Liederkranz Society, with a
chorus of one hundred voices under the Presidency of Mr.
William Steinway. Judge Arnoux as Chairman of the General
Committee visited Washington, and, by special invitation to a
conference between the members of the Court, was enabled to
lay before them the plans for the celebration, and to secure
their heartiest concurrence.
At a later day an Organization was effected in harmony
with the sentiments appropriate to the occasion. The number
of the original committee was increased to one hundred, to
symbolize the years of the century: an Executive Committee
of thirteen was appointed, representing the number of original
States, while the Finance Committee consisted of nine, corresponding with the present number of the members of the
Court. The chairman of each committee was made an ex officio
member of the Executive Committee; the Chairman and Secretary of the General Committee were made ex officio members of all Standing-committees, while the Treasurer was made
an ex officio member of the Finance Committee. This arrangement, primarily intended to secure harmony, proved most
effective and produced the happiest results.
The New York Bar Association and the American Bar
Association most zealously co-operated. The style was adopted
of " The Judiciary Centennial Committee," of which Hon.
William H. Arnoux was appointed Chairman. Special committees upon The Entertainment of Guests and Transportation were appointed.'
The Metropolitan Opera House was secured for the 4th
of February, 1890, and a prior claim to its use was most
' A full list of the membership of all Committees, General and Special, will be
found in the Appendix to this Account.
ï~~GUESTS INVITED.
587
courteously and gracefully waived. The portraits of the Chief
Justices of the United States were obtained for the purposes
of exhibition and decoration through the action of the Court
and Congress, at the instance of Senator Evarts. Invitations
were extended to all Federal judges, both Circuit and District;
to all judges who were members of the highest Courts in the
States, and to all members of the Courts of record in New
York and Brooklyn; to the President and his Cabinet; the
Vice-President; the Governor and Lieutenant-Governor of New
York; the Speaker of the House of Representatives of the
United States, the members of the Judiciary Committee of the
Senate and House, and the Speaker of the New York Assembly, and other distinguished guests who embraced the opportunity of participating in an event replete with historical
reminiscences, and of doing honor to the long record of purity
and exalted ability of that great tribunal which had proved
the safeguard of Constitutional government.
The plans thus carefully framed were successfully carried
out, but on the day preceding that of the celebration the afflicting intelligence arrived of the sudden bereavement, through
an awful casualty by fire, of the Hon. Benjamin F. Tracy,
the Secretary of the Navy, and that the President and his
Cabinet officers, under the shadow of this national sorrow,
would not be able to attend.
Upon the morning of the Fourth of February, 1890, the
vast auditorium of the Metropolitan Opera House was filled
to its utmost capacity, with a brilliant and distinguished audience, assembled to pay a tribute of honor and respect to the
present members of the Court, and to testify to their appreciation of the services of a Tribunal, which, for one hundred years, has been the great Conservative Department of
the Government in expounding and upholding the Constitu
ï~~588 THE SUPREME COURT OF THE UNITED STATES.
tion of the United States and the supremacy of the Federal
authorities. Never before in the history of the country had
there been gathered together at one time and in one place so
many famous jurists and men learned in the law. The boxes
were occupied by the wives and daughters of the Justices and
of the members of the Committee; the only vacant ones being
those upon the right of the stage which had been assigned to
the families of the President and his Cabinet-mute reminders
of the tragedy which had deprived the occasion of their presence.
The building was superbly and appropriately decorated.
Streamers of the National colors were suspended from the
dome and trained back to the upper gallery. The galleries
themselves were profusely draped with large silken flags, and
in the spaces between the first and second tier of boxes the
Coats-of-Arms of the States and Territories of the Union were
displayed. The stage was surmounted by a vast arch draped
with flags and to the centre a fac simile of the Seal of the
Supreme Court of the United States was attached. Upon the
right and left of the stage the portraits in oil of the Chief
Justices of the Court stood upon Easels, adding to the interest
and significance of the scene.
At the appointed hour the members of the Court and
special guests, amid a burst of great and spontaneous applause,
entered the Opera House in the following order:
THE CHIEF USHER AND FOUR USHERS;
THE CHAIRMAN OF THE EXECUTIVE COMMITTEE;
THE CHAIRMAN OF THE COMMITTEE OF ONE HUNDRED;
THE CHIEF JUSTICE OF THE SUPREME COURT OF THE UNITED STATES;
THE ASSOCIATE JUSTICES AND EX-JUSTICE OF THE SUPREME COURT OF THE UNITED STATES;
THE CLERK AND MARSHAL OF THE SUPREME COURT OF THE UNITED STATES;
THE PRESIDENT OF THE NEW YORK STATE BAR ASSOCIATION;
THE PRESIDENT OF THE BAR ASSOCIATION OF THE CITY OF NEW YORK;
THE CHAIRMAN OF THE COMMITTEE OF THE AMERICAN BAR ASSOCIATION;
ï~~ORDER OF PROCESSION.
589
THE SENATORS AND Ex-SENATORS OF THE UNITED STATES;
MEMBERS OF THE JUDICIARY COMMITTEE OF THE HOUSE OF REPRESENTATIVES OF THE U. S.;
THE PRESIDENT PRO TEM. OF THE SENATE OF THE STATE OF NEW YORK;
THE ORATORS OF THE DAY;
THE CHAIRMEN OF THE COMMITTEES ON COMMEMORATIVE EXERCISES AND ON
ENTERTAINMENTS AND RECEPTIONS;
THE CHAIRMEN OF THE COMMITTEES ON INVITATIONS AND ON FINANCE;
THE SECRETARY AND THE TREASURER OF THE COMMITTEE OF ONE HUNDRED;
THE CHIEF JUDGE OF THE COURT OF APPEALS OF THE STATE OF NEW YORK, FIRST DIVISION,
AND THE ASSOCIATE JUDGES AND EX-JUDGE;
THE CHIEF JUDGE OF THE COURT OF APPEALS OF THE STATE OF NEW YORK,
SECOND DIVISION, AND THE ASSOCIATE JUDGES;
THE CLERK OF THE COURT OF APPEALS OF THE STATE OF NEW YORK;
THE UNITED STATES CIRCUIT JUDGES AND Ex-CIRCUIT JUDGES;
THE UNITED STATES DISTRICT JUDGES AND Ex-DISTRICT JUDGES;
THE JUDGES OF THE HIGHEST APPELLATE COURT OF EACH STATE, THE STATES
RANKING ALPHABETICALLY;
THE PRESIDING JUSTICES OF THE SUPREME COURT OF THE STATE OF NEW YORK;
THE CHIEF JUDGES OF THE SUPERIOR COURT AND COURT OF COMMON PLEAS
OF THE CITY OF NEW YORK;
THE JUSTICES OF THE SUPREME COURT OF THE STATE OF NEW YORK;
THE JUDGES OF THE SUPERIOR CITY COURTS OF THE STATE OF NEW YORK;
OTHER INVITED GUESTS;
MEMBERS OF THE COMMITTEE OF ONE HUNDRED;
MEMBERS OF THE RECEPTION COMMITTEE.
Mr. Grover Cleveland, as Chairman of the Executive Committee, took the chair.
Upon his right sat the members of the Court: Chief
Justice Fuller and Associate Justices Miller, Field, Bradley
Harlan, Gray, Blatchford, Lamar and Brewer. Next to them
sat Mr. Justice Strong, retired. Upon his left were seated
Hon. William H. Arnoux, Hon. Edward J. Phelps, William
Allen Butler, Esq., Hon. Henry Hitchcock, Thomas J. Semmes,
Esq. and Frederick R. Coudert, Esq. Immediately behind
them were the Rev. Dr. Dix, the members of the New York
ï~~590 THE SUPREME COURT OF 7HE UNITED STATES.
Court of Appeals, the Judges of the United States Circuit and
District Courts; the members of the various State Courts; the
members of the Committees of the Bar Association and specially invited guests.
The Exercises were formally opened by Mr. Coudert, who
introduced Mr. Cleveland as the Chairman of the day's proceedings, who delivered the following address:
ADDRESS OF EX-PRESIDENT CLEVELAND.
I am sure that I need not remind this audience of the
terrible disaster and distressing bereavement which prevents
the President of the United States and other high officials at
the seat of Government from joining us in these exercises.
We cannot greet them here as we and they had planned;
but we and all their fellow-countrymen will pause to extend
to them heartfelt and sincere sympathy as at their homes
they mourn or bury their dead.
We are accustomed to express on every fit occasion our
reverence for the virtue and patriotism in which the foundations of our Republic were laid, and to rejoice in the blessings vouchsafed to us under free institutions. Thus we have
lately celebrated with becoming enthusiasm, the centennials
of the completion of our Constitution and the inauguration
of our first President.
To-day we have assembled to commemorate an event connected with our beginning as a People, which more than any
other gave safety and the promise of perpetuity to the American plan of government, and which, more than any other,
happily illustrated the wisdom and enlightened foresight of
those who designed our national structure.
In the work of creating our Nation, the elements of a
free government were supplied by concessions of sovereign
ï~~ADDRESS OF MR. CLEVELAND.
591
States, by surrender of accustomed rights, and by the inspiration of pure and disinterested patriotism. If from these elements there had not been evolved that feature in our Federal
system, which is our theme to-day, the structure might have
been fair to look upon, and might have presented a semblance of solidity and strength; but it would have been only
a semblance, and the completed edifice would have had within
its foundations the infirmity of decay and ruin.
It must be admitted that it is hardly within the power
of human language so to compass diverse interests and claims
within the lines of a written Constitution as to free it entirely
from disputes of construction; and certainly diverse constructions were apt to lurk in the diction of a Constitution declared by the President of the Convention which formulated
it to be "the result of a spirit of amity and of that mutual
deference and concession which the peculiarity of our political
situation rendered indispensable."
It is fairly plain and palpable, both from reason and a
review of events in our history, that without an arbiter to
determine finally and conclusively the rights and duties embraced in the language of the Constitution, the Union of
States and the life of the American Nation must have been
precarious and disappointing. Indeed, there could hardly have
been a well-grounded hope that they would long survive the
interpretation of the National Compact by every party upon
whom it rested, and the insistence of each to the last extremity upon such an interpretation as would secure coveted
rights and benefits, and absolve from irksome duties and obligations.
In the creation of the world, the earth was without form
and void, and darkness was upon the face of the deep, until
God said, Let there be light, and there was light.
ï~~592 THE SUPREME COURT OF THE UNITED STATES.
In the creation of the new Nation, our free institutions
were without the form and symmetry of strength, and the
darkness of hopelessness brooded over the aspirations of our
people, until a light in the Temple of Justice and Law,
gathered from the Divine Fountain of Light, illumined the
work of the Fathers of the Republic.
On this centennial day we will devoutly thank Heaven
for the revelation to those who formed our government of
this source of strength and light, and for the inspiration of
disinterested patriotism and consecrated devotion which established the tribunal which we to-day commemorate.
Our fathers had sacrificed much to be free. Above all
things, they desired freedom to be absolutely secured to themselves and their posterity. And yet with all their enthusiasm
for that sentiment, they were willing to refer to the tribunal
which they devised all questions arising under their newly
formed Constitution, affecting the freedom and the protection
and safety of the citizen. Though bitter experience had
taught them that the instrumentalities of government might
trespass upon freedom, and though they had learned in a
hard school the cost of the struggle to wrest liberty from the
grasp of power, they refused, in the solemn work they had
in hand, to take counsel of undue fear or distracting perturbation; and they calmly and deliberately established as a
function of their government a check upon unauthorized freedom and a restraint upon dangerous liberty. Their attachment and allegiance to the sovereignty of their States were
warm and unfaltering; but these did not prevent them from
contributing a fraction of that sovereignty to the creation of
a Court which should guard and protect their new nation,
and save and perpetuate a government which should in all
time to come bless an independent people.
ï~~ADDRESS OF MR. ARNOUX.
598
I deem myself highly honored by the part assigned to
me in these commemorative exercises. As in eloquent and
fitting terms we shall be led, by those chosen to address us,
to the contemplation of the history of that august tribunal
organized one hundred years ago; as the lives and services
of those who in the past have presided over its cDuncils are
rehearsed to us; as our love and veneration for our fellowcountrymen who now fill its high and sacred places are
quickened, and as we are reminded of the manner in which
our National Court has at all times illustrated the strength
and beneficence of free institutions, let us be glad in the
possession of this rich heritage of American citizenship, and
gratefully appreciate the wisdom and patriotism of those who
gave to us the Supreme Court of the United States.
The Reverend Morgan Dix, D.D., L.C.L., Rector of
Trinity Church, New York, offered appropriate prayers from
the Prayer-Book of the Protestant Episcopal Church.
An Address of Welcome to the Court was then delivered
by the Hon. William H. Arnoux, Chairman of The Judiciary
Centennial Committee.
ADDRESS OF HON. WILLIAM H. ARNOUX.
Mr. Chairman, Ladies and Gentlemen.--
The President of the United States in his inaugural address first invited attention to the celebration of the centennary of the organization of the Supreme Court of the United
States.
" Our people," he says, "have already worthily observed
the centennials of the Declaration of Independence, of the
Battle of Yorktown, and the adoption of the Constitution, and
will shortly celebrate in New York the institution of the
38
ï~~594 THE SUPREME COURT OF THE UNITED STATES.
second great department of our constitutional scheme of Government. When the Centennial of the Institution of the Judicial Department by the organization of the Supreme Court
shall have been suitably observed, as I trust it will be, our
Nation will have fully entered its Second Century."
Moved.by this spirit, and following the initiative of the
President, the State Bar Association in co-operation with the
American and City Bar Associations selected a Judiciary Centennial Committee, under whose auspices I have the honor to
address the Court and this brilliant audience which has assembled to celebrate this important event.
Mr. Chief Justice of the United States and gentlemen, the
Associate Justices of the Supreme Court of the United States,
we welcome you in behalf of those who are here assembled,
representing the Executive and Legislative Departments of the
Government, National and State, the Bench and the Bar of
the Federal and State Courts, whose selected delegates have
gathered here from Maine to California, and the People of the
United States, the freest and the happiest in the world.
It is most fitting that this welcome should be extended to
you at this place and time, because one hundred years ago
this day, on the first Tuesday of February, 1790, the Supreme
Court of the United States held its first session at the Exchange in the City of New York, and installed into office the
Chief Justice, two Associate Justices and the Attorney-General. The Court then adjourned for want of business!
This action completed the organization of the Three Departments of the Government. It was the bright consummate
flower of a vigorous growth that had been nurtured and
watched over with prayers and tears and blood by an immortal band of patriots. Fifteen years before, Washington, first
ï~~ADDRESS OF MR. ARNOUX.
595
of all, had conceived the idea of such a Court, and on the day
we celebrate it had become an accomplished fact.
Nominated by the President, confirmed by the Senate, independent of both, without which the Union would have been
a rope of sand, your tribunal is removed from the passions,
the prejudices, the temptations, the ambitions that assail and
sway the other branches of Government, or that affect Courts
in other lands that are dependent upon 'sovereign power.
Vested with extraordinary powers never before contemplated, never yet conferred upon any other judicial body, you
are the ultimate repository of the rights and liberties of the
people, the conservative restraining force that can curb unlawful executive action and abrogate unconstitutional legislative
enactments, without arms, ammunition, or a treasury at your
command; and to your glory be it said your power has not
been abused by you or resisted by the States. In your judgments you have verified the declaration of Cicero that Justice
is obedience to the written law which is superior to the magistrate as the magistrate is superior to the people. You have
proved that nothing is law that is not reason, and where in
rare instances you have found that the reason had failed, you
have exhibited the highest nobility that mankind is capable
of in acknowledging your error and in reversing your own
decisions.
Your labors began with a Nation whose population
scarcely exceeded that of this city and its vicinity at the
present time, and now more than sixty-five millions of people,
extending from Ocean to Ocean, and from the Tropics to the
Arctic zone, of different races, religions, politics and interests,
alike cheerfully and loyally submit to your decrees. A benign
and watchful Providence we devoutly believe has guided and
guarded your deliberations and enabled you to do justice and
ï~~596 THE SUPREME COURT OF THE UNITED STATES.
promote equity. You are enshrined in the hearts of the
people over whom you have shed the gladsome light of jurisprudence. Animated by the same spirit of affection and respect, future millions will bless the wisdom that established
and directed the Court.
I adopt the reverent language, a benediction and a prayer,
to which you listen at the opening of your sessions, and say,
GOD BLESS THE UNITED STATES AND THIS HONORABLE COURT.
William Allen Butler, Esq, was then introduced and delivered the following address upon "The Origin of the Supreme Court of the United States, and its Place in the Constitution: "
ADDRESS OF WILLIAM ALLEN BUTLER, ESQ.
" THE ORIGIN OF THE SUPREME COURT OP THE UNITED STATES AND ITS PLACE IN
THE CONSTITUTION."
THIS Commemorative hour sets before our view, in the
retrospect, and after the lapse of a century, the structure of
our National Government at the moment when, for the first
time, it stood complete in all its parts.
The new order of things established by the Federal Constitution, adopted by the Convention, September 17, 1787,
came very gradually into being. The ratification by eleven
of the thirteen States was not completed until July, 1788.
The first Congress summoned to meet in New York, as the
seat of government, on the 4th of March, 1789, did not convene until the beginning of April, when, after counting the
votes of the Electoral Colleges, it declared Washington the
President-elect. His inauguration followed on April 3oth,
but, as yet, there was no Federal Judge to administer the
ï~~ADDRESS OF MR. BUTLER.
597
oath of office required by the Constitution of the Chief
Magistrate of the Republic. This service was performed by
Robert R. Livingston, the first Chancellor of New York,
under the Constitution of that State of 1777.
Congress, on the day after its organization, entered on
the work of providing for the establishment of the Judiciary
by appointing a Committee, of which Oliver Ellsworth, one
of the framers of the Constitution, and afterwards Chief Justice of the Supreme Court, was the Chairman. The Judiciary
Act, which set in order and regulated the whole system of
District and Circuit Courts of the United States, substantially as it exists to-day, was largely the work of this eminent
jurist. It was approved by Washington, September 24th,
I789.
The first section of this act provided " that the Supreme
Court of the United States shall consist of a Chief Justice
and five Associate Justices, any four of whom shall be a
quorum, and shall hold annually, at the seat of government,
two sessions, the one commencing the first Monday of February, and the other the first Monday of August."
Washington promptly nominated, and the Senate as
promptly confirmed, John Jay, of New York, to be Chief
Justice of the Court, and as Associate Justices, John Rutledge, of South Carolina, William Cushirng, of Massachusetts,
Robert H. Harrison, of Maryland, James Wilson, of Pennsylvania, and John Blair, of Virginia. Of these, Jay, Cushing
and Harrison had respectively served as Chief Justices in
their own States; Rutledge, Wilson and Blair had been
members of the Convention which framed the Constitution.
Harrison declining to serve, his place was afterwards
filled by the appointment of James Iredell, of North Carolina.
On the first Monday of February, 1790, the day fixed
ï~~598 THE SUPREME COURT OF THE UNITED STATES.
for the opening session of the Court, a quorum was not
present;. on the following day, the first Tuesday of February
-one hundred years ago-the room in the Exchange, set
apart for the Court, the Federal Hall being occupied by Congress, was, as we are informed by the United States Gazette,
in its issue of the next day, "uncommonly crowded." Numerous Federal, State and municipal officers were present,
"and a great number of the members of the Bar." The
Chief Justice and Associate Justices Cushing, Wilson and
Blair took their seats on the Bench, attended by the Attorney-General of the United States, Edmund Randolph, of
Virginia; the Letters Patent commissioning all these officers
were read by John McKesson, Esq., who acted as temporary
Clerk; Richard Wenman was appointed " Cryer;" proclamation was made, and the Supreme Court of the United States
was opened.
By these acts, marked with true Republican simplicity,
the full breath of life was breathed into the government of
the United States, and it became a living organism.
John Jay wore on this occasion the ample robe of black
silk, with salmon-colored facings on the front and sleeves,
which the pencil of Gilbert Stuart has perpetuated in the fine
portrait, a copy of which is now in the Chambers of the Supreme Court at Washington. It was, as the family tradition
declares, the academic gown of a Doctor of Laws, according
to the usage of the University of Dublin, which had conferred
this degree not long before upon the new Chief Justice, who
in the absence of precedent or rule, thus gracefully associated
the garb of the University with the dignity and destiny of
the new tribunal in which he presided, a not unfitting attestation that the true equipment and investiture for judicial
office is not political affiliation, but professional fitness.
ï~~ADDRESS OF MR. BUTLER.
599
The associate Justices wore the ordinary black robe which
has since come into vogue as the vestment of all the members of the Court.
After the appointment as Clerk of John Tucker, late Clerk
of the Supreme Court of Massachusetts, whom Fisher Ames
had recommended for the place, and the adoption of a seal,
the roll of Attorneys and Counsellors was opened on the 5th
of February, and a few names were inscribed on the parchment. The rule of admission preserved the old distinction
of Attorneys and Counsellors; the former were not permitted
to practice as Counsellors, nor the latter as Attorneys, a discrimination afterwards abrogated. The first name on the roll of
Counsellors was that of Elias Boudinot, of New Jersey, a
Revolutionary patriot and philanthropist, conspicuous in the
Continental Congress and later, in the first Congress of the
United States; held also in revered memory as the first President of the American Bible Society.
In strange contrast with the proceedings of the present
time, the Court, after a few formal sessions, adjourned February
ioth, for want of business. It was a Court without suitors,
its virgin docket unsullied by any entry of petitioners, plaintiffs in error, or appellants, and its earliest session was
unclouded by any portent of that vast avalanche of litigation which during the succeeding years of its first
century has overwhelmed it with a silent, but irresistible
growth.
Congress, which in 1789, gave its best thought and talent
in aid of the establishment of the Supreme Court, can, to-day,
provide relief against the over-taxing of its powers. Is it too
much to ask that in this Centennial year, something of the
interest which Ellsworth and his compeers showed, may now
be accorded to provide the relief which the Court needs, which
ï~~600 THE SUPREME COURT OF THE UNITED STATES.
the American Bar solicits, and which the rights of suitors
demand?
One interesting incident of the first session of the Supreme Court in this city may detain us for a moment longer.
It established a precedent which is happily recognized and
followed to-day. The Court accepted an invitation to dinner.
The host who entertained it was the Grand Jury. This body,
representing the most ancient jurisdiction of the Common Law
of England, and one of its chief conservators of private rights
and liberties, was the first to extend a welcome to this newest
Court of highest and last resort, and in the interchange of
patriotic greetings and sentiments to forecast its brilliant
future.
The jurisdiction thus auspiciously established has ever
since been exercised by the six Chief Justices and the fortyfour Associate Justices, who have been the successors in office
of Jay and his original associates, and it has been deemed
appropriate on this commemorative occasion to delineate, in a
brief sketch, the origin of the Court, the nature of its powers
under the Constitution, and its place in our free* system of
government.
That the powers which the thirteen States delegated to
the new government of the United States must be distributed
among three departments,-the Legislative, the Executive and
the Judicial,-was required by an axiom of the science of
representative government. Already, in the Constitutions of
many of the States, this division had been imperfectly attempted; but by the Articles of Confederation, which had
served under the strain and pressure of the War of Independence to hold the States together till the end of the long
struggle, all the powers of government were mainly vested in
ï~~ADDRESS OF MR. BUTLER. 601
a single Assembly. There was no Judicial Department, and
the whole system was wanting in the elements required for
permanent Union.
Long before the meeting of the Convention to frame the
Constitution, the establishment of an independent Judiciary,
as a separate and distinct department of the Government,
had become a cardinal idea. Jay wrote to Washington on
August 18, 1776, just after the Declaration of Independence:
"I have long thought, and become daily more convinced, that the
Constitution of our Federal Government is fundamentally wrong. To
vest Legislative, Judicial and Executive power in one and the same
body, daily changing its members, can never be wise. In my opinion,
these three great departments of sovereignty should be forever separated,
and so distributed as to serve as checks on each other." '
In the various plans submitted to Washington by his
co-workers in the effort for a Convention and a Constitution,
the same view appears. One of the earliest of these was promulgated by General Knox, the companion in arms and lifelong friend of Washington, and during his entire administration Secretary of War. In a letter to his chief, of January
14, I789, this brave soldier, as ready with his pen as with
his sword, sketched the outlines of a Constitution containing
express provisions for a Judiciary, with life tenure of office
and supreme powers, substantially as the Constitution afterwards ordained.
The fact is conspicuous, that as the leaders of American
Independence fastened upon the idea of substituting for the
loose compact of the Confederation a Union of the States
based on the absolute sovereignty of the People and the surrender by the separate States of all the powers needed to
I Sparks, IX, 510-511.
ï~~602 THE SUPREME COURT OF THE UNITED STATES.
constitute a National Government, without trenching on the
rights reserved to the States, the root and ground work of
this complex idea was the establishment of some system by
which the organic law of the United States and the statutes
of their Congress should be the supreme law of the land,
binding everywhere and enforceable everywhere. To their
minds it became clear that if justice is the basis of society,
it must be so administered as to control society by operating
upon all its members, and where separate States should agree
to carve out of their own sovereignty the powers needed to
set up a government for all, the grant of powers must be
ample to make their exercise effectual. While the power of
each State to punish violations of its own laws and enforce
the contracts of its citizens, and maintain all the ends of
government within its own territory must be exercised by
State Courts and Judges and officers, without interference, a
like absolute power in the Federal Government must go hand
in hand with the delegation by the States of the right to regulate all those matters which were to come within the sphere
of the enumerated powers of the United States. The National
Government must be as competent to punish crimes forbidden
by its laws and to enforce the judgments declared by its
Courts as are the States within their separate boundaries in
respect to their own local laws and the jurisdiction of their
local Courts. More than this, the true scope of the national
jurisdiction having been once established, no State should
have power to make any law in conflict with the organic
law, or with the statutes of the whole realm, and, still further, the National Congress itself should have no power to
invade the Constitution by any enactment contravening its
provisions.
It follows from these primal and essential requirements
ï~~ADDRESS OF MR. BUTLER.
608
that the American Congress could not, like the British Parliament, be omnipotent to express the will of the people by
statute, nor could it, as in England by the House of Lords,
or as in the State of New York by the Senate, share in the
administration of the judicial power. The Judiciary, in order
to hold the scales of justice with even hand, where the rights
of all the citizens were concerned, and where the line of demarcation between the powers reserved and the powers granted
by the States would be the subject of controversy and control,
must be an independent branch of the Government, so constituted and so upheld in the high plane of its jurisdiction that
its deliberative and determining faculty might be exercised in
an atmosphere undisturbed by passion, prejudice or popular
opinion.
"The office of the Chief Justice," said Jay, and his remark applies with equal force to every member of the Court,
should be "as independent of the inconstancy of the people as
it is of the will of a President;" and again he said, "in the
future administration of this country the firmest security we
can have against the effect of visionary schemes or fluctuating
theories will be in a solid judiciary."
Accordingly when the Convention met at Philadelphia in
May, 1787, there was little difference of opinion among its
members as to the grant of the judicial power to be embodied
in the Constitution. In respect to this they saw eye to eye;
and in the early days of the Convention the "Virginia plan,"
presented by Edmund Randolph, the "New Jersey plan," presented by William Paterson, and the monographs of Pinckney
and of Hamilton, contained almost identical provisions for the
establishment of the Judiciary. The main difference of, opinion
arose on the propositions to give even greater powers than
those finally conferred, by vesting the Supreme Court with
ï~~604 THE SUPREME COURT OF THE UNITED STATES.
power to advise the other departments of the Government on
important questions and on "solemn occasions" and giving
them, with the Executive, a veto upon legislative acts.
Wilson, in July, 1787, moved that the Supreme National
Judiciary should be associated with the Executive in the revisionary power, urging that laws might be enacted by the
Legislature not so unconstitutional as to justify the Judges in
denying them effect, but so unwise and dangerous as to be
destructive. Madison seconded this motion, but Rutledge
opposed it. "Judges," he said, "were of all men most
unfit to be concerned in Revisionary Council-they ought
never to give their opinions on a law until it comes before
them."
The proposal was abandoned and in the discussions on the
various propositions in regard to the Judiciary there was a
striking unanimity among the members of the Convention in
regard to all essential points.
This unanimity of sentiment was largely the result of
the long training and experience of the men who made the
Constitution, gained in shaping and administering the fundamental laws of their own States.
In the light of the researches stimulated by the revival
of interest in American ideas which marks this Centennial
epoch, we have come to see how largely the principle of
growth and development which inheres in every onward movement of the race was at work in the unfolding of our organic
law. The Federal Constitution was, in great part, the result
of what had gone before in the making of the Colonial local
governments and of the States and of the Confederacy. It
was the crystallization of elements which needed only the agitation of a supreme crisis to set them in a fore-ordained and
symmetrical shape. Much of the work of the Convention was
ï~~ADDRESS OF MR. BUTLER.
605
mere adaptation and adjustment of existing methods under
well recognized and familiar principles.
But in the matter of the judicial power, what the framers
of the Constitution did was specially their own work, original
and unique. The germ was doubtless in that sense of
justice and of the preservation and enforcement of individual
rights which had taken such firm root in the earliest American communities, but no local growth had ever been the
equivalent in any separate sphere, or the type in any attempted organization, of the complex and far-reaching system
set in order by the Constitution. This work was not adaptation but creation; the workmen were not only experts but
inventors. They came together with full and long and complete preparation for a task which, as it grew on their hands,
gave the stimulus and inspiration for an execution which outran their first intention, but was not beyond their wisdom.
From the days of the Achaian League, antedating the
Christian era, there had been alliances, compacts and confederations of nations, with external union and internal jealousies
and feuds, but never a perfect union based on concentered
powers, drawn from each, so as to be administered for all,
and to be binding upon all. This required a step in advance
from the shifting and treacherous sands of mere voluntary
compact to the solid ground of organic law.
The idea of law, not as an abstract principle, but as a
rule of affairs and as the supreme force in government, was
native to the English-speaking race. The difference between
a government of laws and a government of men, as indicated
by John Adams and asserted afterwards by Marshall, was a
real and not a fanciful distinction. It meant a government
in which no class and no man should be superior to the law
of the land and beyond its reach.
ï~~606 THE SUPREME COURT OF THE UNITED STATES.
In the centuries of struggle in England between usurpation and popular right the contending parties both claimed
under color of law. It has been truly said that even in the
days "when the liberties of England were most nearly forgotten, acts of tyranny had to be justified with at least a
show of legality." Shakespeare puts in the mouth of Henry
VIII., this rebuke addressed to Wolsey:
"We must not rend our subjects from our laws,
And stick them in our will."
American Independence was very largely the work of
lawyers. It was the standing sneer of British statesmen that
so many of the leading colonists were lawyers, each one
thinking himself competent to hold a brief against the Crown
and Parliament, and ready to join issue on every new assertion of their power, and the colonists who were not lawyers
fancying themselves statesmen, crazed with what Shrewsbury,
Pitt's Irish Viceroy, described to him as the "mania for
State-making."
These Colonial jurists and publicists had organized revolution on the basis of constitutional right; they had brought
out of the chaos of revolt the order of the Confederation, the
first crude conception of the Union of the States; they had
transformed the States of the Confederation from communities
in rebellion against a sovereign into sovereignties in their
own right; they had waged a successful war, and had made
an honorable peace, and during all these years of struggle
and vicissitude they had been profound students of the problems of Liberty as secured by Law and of Law as the conservator of Liberty.
1 Pollock on Jurisprudence and Ethics, London, 1882, p. 212.
ï~~ADDRESS OF MR. BUTLER. 607
Never since the Hebrew lawgiver pondered, on the plains
of Midian and in the shadows of Horeb, the deliverance and
leadership of an enslaved race, had there been such a period
of preparation and of profound insight into human government and human rights. The Revolutionary leaders had
explored all the theories of philosophers and all the annals
of the race in the search for the pattern and ideal of free
government, and above all they had sifted through the web
and mesh of their own thought and experience the elements
of the great constitutional system, "the mirror of free government," of what was still to them, in spite of its oppressions,
the Mother Country.
They meditated on these things in the night watches;
while they were musing the fire burned; the inextinguishable
fire of patriotism which, in those lofty souls, flashed from
heart to heart and mind to mind, as from peak to peak in
some beleagured land the midnight sky is lighted with the
rallying fires of freedom.
The Third article of the Constitution contains the grant of
judicial power. It provides, by its first section, as follows:
"The judicial Power of the United States shall be vested in one Supreme Court, and in such 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."
This grant of power is direct from the People to the Supreme Court. As originally reported, the article made the
institution of inferior Courts obligatory on Congress, but, by
way of compromise, their creation was left to the discretion
of the National Legislature. The appointment of the Judges
ï~~608 THE SUPREME COURT OF THE UNITED STATES.
of the Supreme Court was devolved by the preceding article,
on the President, by and with the advice and consent of the
Senate.
The Virginia plan had vested the appointment of the
Judges in the National Legislature, but this was rejected by
the Convention. The New Jersey plan provided for their appointment by the President; Hamilton's plan also gave the
power of their appointment to the President, but required the
concurrence of the Senate, and this was finally approved by
the Convention.
All the plans concurred in fixing good behavior as the
tenure of office, and there was no dissent as to this departure
from the English system, which displaces the Lord Chancellor
with every change of administration, and makes the other
Judges removable on the request of a majority of each House
of Parliament. An attempt to engraft this method of removal
on our judiciary system failed by a decisive vote, only one
State, Connecticut, voting aye.
These wise provisions of the Constitution were in great
part consonant with the organic laws of the States.
In Massachusetts, Maryland and New Hampshire, the
Judges were appointed by the Executive; in New York and
Pennsylvania by the Governor and the Council of appointment; in Delaware by the Governor and the Legislature, and
in New Jersey, Virginia, North Carolina and South Carolina
by the Legislature. In Georgia only was the idea of "Popular Justice" expressed in the Constitutional provision for an
annual election of the Judges. Connecticut and Rhode Island
were under the operation of their original charters, continued
in force as the organic law, and which vested all power in
their Governors and Assemblies.
The giving to the Senate a participation in the appoint
ï~~ADDRESS OF MR. BUTLER.
609
ment of the Judges trenched somewhat upon the complete independence of the judicial department, but was regarded as
less liable to abuse than the alternative methods of election
by Congress, or appointment by the Senate alone, the former
of which was proposed by Randolph, and the latter adopted,
in the first instance, by the Convention, but afterwards abandoned for the provision as it now stands in the Constitution.
The life tenure, subject only to impeachment by the
House of Representatives and trial before the Senate, was a
substantial guaranty of the independence of the judiciary.
Good behavior was the rule of the judicial tenure in the States
with some exceptions, such as that of Georgia, already instanced, and New York, where, by a strange fatuity, the limit
of judicial service had been fixed by the Constitution of 1777
at sixty years of age, a rule which although strenuously denounced by Hamilton and other leaders of public opinion, was
perpetuated by the State in the later Constitution of 1821,
with the immediate effect of driving from the Bench, in the
fulness of his judicial fame, that greatest of her jurists,
Chancellor Kent.
Plato, in his ideal Republic, had fixed the age of seventy
as the limit of judicial service, but the framers of the Constitution, with Franklin, at the age of fourscore and one, aiding in their daily deliberations, were wiser than Plato. They
agreed with Hamilton that "the mensuration of the faculties
of the mind has no place in the catalogue of the known arts."
Experience has justified their conclusions. The life tenure, with the wise provision permitting retirement at the age
of seventy, after ten years of service, has worked well. It
has kept on the Supreme Bench jurists whose long familiarity
with its duties and whose ripened wisdom have made their
services invaluable to the country,-services not grudged to39
ï~~610 THE SUPREME COURT OF THE UNITED STATES.
day by the members of the Court whose years outrun the
three-score and ten of Scriptural limitation and of statutory
privilege. During the century of its existence the Court has,
in the main, been singularly fortunate in exemption from accident, casualty or premature death, and the year just closed has
been marked by a signal deliverance from the hand of violence.
The genius of modern Democracy and of organized politics has fastened upon thirty-six of our forty-two States the
election of their Judges by popular suffrage and for a term
of years; the tenure during good behavior survives in only
three States.
A partial reaction against the unwise policy of short
judicial terms has modified the disadvantages of the elective
system in some of the States; but their concurrent adherence
to it is at variance with the Federal system, and apparently
in condemnation of it. Yet no serious attempt has ever been
made to dislodge from the organic law this corner-stone of
the independence of the Judiciary.
After thus vesting the judicial power in the Supreme
Court, and leaving to Congress the creation of inferior Courts,
the Constitution proceeds, by Section 2 of Article III, to provide as follows:
"The Judicial Power shall extend to all Cases, in Law and Equity
arising under this Constitution, the Laws of the United States, and the
Treaties made, or which shall be made, under their Authority; to all
Cases affecting Ambassadors, other public Ministers, or 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."
ï~~ADDRESS OF MR. BUTLER.
611
In plain terms, and in general, this means that wherever
a right exists or is claimed under the Constitution or laws
or treaties of the United States and is disputed, the litigants
are entitled to their day in a Federal Court and must abide
by its judgment. Federal Courts exist for Federal questions,
and State Courts for questions not Federal; and although, in
respect to many matters, they have concurrent jurisdiction,
yet as to everything which draws in question a constitutional
or statutory right, which is Federal and not State, there the
Courts of the United States have the exclusive right of determination, and if the amount in dispute exceeds five thousand dollars, the Supreme Court is the final arbiter.
But to set the judicial power in motion there must be
actual controversies and real suitors. The power granted by
the Constitution and regulated by the Judiciary Act is to be
exercised, not by way of advice or in the initiation of laws,
or their scrutiny and comparison with the Constitution in
order to their approval or disapproval at the time of their
enactment, but only so far as cases shall be brought before
the Court by due and orderly process of law; and while its
decision is final as to the parties before it, and must be enforced as to them, it is not otherwise binding, save as it carries weight as the declared judgment of the Court, presumably to stand and be applied in all cases involving the
question passed upon by the Court.
This broad delegation of power over the wide range of
common law and equity cases gave to the Federal Judiciary
all the power of the English Common Law Courts and the
Courts of Chancery as to everything within the sphere of the
National, as distinguished from the State sovereignty, and
also the final right of determining whether any act of Congress contravenes the Constitution, and whether any Consti
ï~~612 THE SUPREME COURT OF THE UNITED STATES.
tution or statute of a State contravenes the Constitution or
the laws of the United States.
It is under this great head of jurisdiction that the constitutional questions which have been brought before the Court
have been answered and adjudicated.
The extension of the power in like manner to cases arising under treaties with foreign Governments, and to cases
affecting their representatives was obviously necessary and was
according to a canon of International law.
The next incident of judicial power is its extension to
all cases of admiralty and maritime jurisdiction. This was
an imperial grant, covering the whole vast body of the maritime law, not according to the narrow jurisdiction of the
English admiralty, with its limitations of ebb and flow of tide,
but according to the broad scope of the great body of the
maritime law, as contained in the Codes of Continental Europe, adapting it to the ever-growing needs of commerce on
our great inland waters, wherever vessels float and navigation
exists.
The next grant of power was in respect to controversies
to which the United States shall be a party, which necessarily
must be tried in the Federal Courts. Thus far the most
striking element in the powers granted is that which clothes
the judiciary with the right to annul legislative enactments.
Even as to this power it has been said that the Supreme
Court "has no prototype in history."
"Judicial tribunals have existed as component parts of other Federal
systems, but the Supreme Court of the United States is the only Court
in history that has ever possessed the power to finally determine the validity of a National law." 1
'Taylor's "Origin and Growth of the English Constitution," 1888, Part i, p. 73.
ï~~ADDRESS OF MR. BUTLER.
613
But in the clause next following the judicial power is extended "to controversies between two or more States."
This brief but comprehensive waiver on the part of the
thirteen Sovereign States of exemption from judicial power
and this mandate of the organic law, that the judicial power
created by the people shall be the arbiter between the States
themselves, in all their controversies with each other, mark
the highest level ever attained in the progress of representative government. They have justly excited the wonder and
admiration of the most intelligent observers of our Constitutional system.
Tocqueville says: "In the nations of Europe, the Courts
of justice are only called upon to try the controversies of private individuals; but the Supreme Court of the United States
summons sovereign powers to its bar."
John Stuart Mill declares this substitute in the organic
law for war and diplomacy as the means of settling disputes
between States "the first example of what is now one of the
most prominent wants of civilized society, a real International
Tribunal."
Pursuing the enumeration of powers, jurisdiction is further extended "to controversies 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."
So broad and sweeping was this specification that it was
claimed soon after the Constitution went into operation, that a
State could itself be sued by a citizen of another State, and
the claim was upheld by the Court with only one dissenting
voice, in favor of a creditor of the State of Georgia.'
'February 19, 1793, Chisholm v. Georgia, 2 Dallas, 419.
ï~~614 THE SUPREME COURT OF THE UNITED STATES.
An amendment of the Constitution was required to avoid
the effect of this decision, and to secure the States in that
attribute of sovereignty which prevents them from being impleaded as defendants at the suit of private citizens without
their consent.
It is then declared that
"In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court
shall have original jurisdiction. In all the 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."
That is to say, suits can be commenced in the cases
specified as in any Court of original jurisdiction. In all
other cases it shall have appellate jurisdiction to review the
decisions of the inferior Federal Courts and such decisions of
the State Courts as are claimed to infringe the Constitution
and laws of the United States.
So peaceful has been the tenor of diplomatic life in this
country that the original jurisdiction of the Court has never
been invoked by an ambassador or other public minister.
Direct controversies between the States are comparatively
infrequent. It is the appellate jurisdiction which brings
before the Supreme Court contending suitors from every circuit and district of our vast commonwealth, and from every
State, in cases where Federal questions are involved.
Supplementing and making sure this entire grant of
power is the declaration contained in Article VI:
"This Constitution and the Laws of the United States made and
which shall be made in Pursuance thereof, and all Treaties made or
ï~~ADDRESS OF MR. BUTLER.
615
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, any Thing in the Constitution or Laws of any State to
the contrary notwithstanding."
This brief and comprehensive declaration proposed in the
convention on July 17, 1787, by Luther Martin, of Maryland,
and passed unanimously, stands in the Constitution as the
Bill of Rights of the Federal Judiciary. It is a nail fastened
in a sure place. It would have been wholly in vain to grant
the supreme judicial power to the Federal Courts without
this solemn guaranty against any remaining power in the
State Courts, or Judges, to nullify or impede its exercise.
The supreme power must reside somewhere, and the basis of
the American constitutional supremacy is nowhere better described than in Washington's terse phrase, in his letter as
President of the Convention, commending the work to the
approval of the States, as the "giving up a share of liberty
to preserve the rest."'1
Vast and far-reaching as are the powers thus granted,
the same organic law which confers them provides against
their abuse, by declaring the liability of the Judges to impeachment for bad behavior, and by the reserved right of the
people to amend the Constitution-a right exercised in the
restraint of jurisdiction imposed by the Eleventh Amendment
-and, further, by the power of Congress to regulate the
appellate jurisdiction. Finally, beyond and above all written
boundaries and limitations of the judicial power, is the everpresent scrutiny of the people, whose instrument it is-the
collective wisdom of the whole nation-that which James
Wilson, of Pennsylvania, one of the ablest members of the
' Letter to Congress, Elliott, IV, 194.
ï~~616 THE SUPREME COURT OF THE UNITED STATES.
Convention, and one of the first Associate Justices of the
Supreme Court, called "the mind or sense of the people at
large," another name for organized Public Opinion.
The nature and extent of these powers have been the
theme of endless discussions without and within the precincts
of the Federal Judiciary ever since the day when the Constitution was first submitted to the suffrages of the States. In
the luminous essays of the Federalist; in the debates of the
State Conventions called to deliberate on the new charter of
Federal sovereignty; in private correspondence redolent of
the patriotism of that by-gone epistolary age; in newspaper
contributions teeming with lucubrations over classical nommes
de plume; in the forensic discussions before this "more than
Amphyctionic Council," the masterpieces of the leaders of the
American Bar; and, most of all, in the opinions and decisions
of the Court itself, its great functions as given by the organic
law have been analyzed and applied and worked out into a
majestic and enduring system of jurisprudence. Called into
being at a time when Europe was "strewn with the wrecks
of the liberties of the Past," and after all the experiments of
the Confederacy had failed, the new judiciary entered upon
the task of maintaining the supreme law of the Union as the
controlling power in the administration of justice for the
whole body of the States and for all their citizens. They
were confronted on the one hand by the "epidemic frenzy of
State sovereignty," with its jealousy of centralization, and on
the other hand by the demand for a sure and stable system
by the men who had spent their strength in the vain endeavor to uphold the tottering structure of the Confederacy,
and who knew that the only safety of the Union was in the
strength of its Government.
ï~~ADDRESS OF MR. BUTLER. 617
What the founders intended and what they accomplished
was something wholly different from the creation of a tribunal
to coerce or control the political action of the States, or to invade the exercise of their rights in the regulation of that vast
department of internal government, which, for want of a better
name, we call the "Police Power." They meant to create,
and they created, a Court which, by its supreme authority,
acting upon suitors who should invoke its power, and executing its decrees by due process of law, should be able to annul
and make void any and every enactment by which Congress
or any State Legislature or Constitutional Convention should
infringe upon the Constitution and Laws of the United States.
They meant also to provide a complete system for the administration of justice between all suitors standing in such relations of right or of citizenship as to make their controversies
properly cognizable by the Federal Courts. In providing for
the independence of the Judiciary, they kept it free from all
share in legislation, and from all dependence on the Legislature for any original power. They knew that under the system of party government which must needs prevail, partisanship and politics would be the controlling force in legislation,
and they knew how easily politics are associated with corruption. The maxim of Walpole that "every man has his price,"
had borne its baneful fruit in the English Parliament. The
framers of the American Constitution, with a higher ideal of
government, and with a civic virtue even worthier of praise
than the wisdom which won for them the world's applause,
strove to give this ideal form and substance and perpetuity.
Above all they sought, if possible, to commit to stainless hands
the unstained sword of Justice.
Not that Judges are infallible in opinion or perfect in life.
The names of Jeffreys and Scroggs are synonyms of judicial
ï~~618 THE SUPREME COURT OF THE UNITED STATES.
infamy, and even the great fame of Bacon is marred by his
fatal lapse from integrity, but, in the main, during the eight
centuries of judicial administration in England, justice has
been fairly done, and the Courts of law have been the true
Palladium of civil rights, and their last refuge from oppression,
short of Revolution.
The Constitution wisely confined the Court to the judicial
power. To the outward view this is a far narrower limit than
that of the British Constitution, which makes the Lord Chancellor the presiding officer of the House of Lords, and makes
Judges participants in legislation. In one sense, as has been
pointed out by the senior Associate Justice now on the Bench,
the Court is the weakest of all the Departments of the Government. Montesquieu declared that the judicial power "is next
to nothing;" and as was said long ago by another French
publicist, it "has no guards, palaces or treasures, no arms but
truth and wisdom, and no splendor but the justice and the
publicity of its judgments." In the Constitutional grant of
its supreme judicial functions, operating with noiseless and yet
with irresistible force, lies the hiding of its power.
How well the powers thus granted have been exercised,
the history of the Federal Judiciary attests. In its great task
of bringing the behests of the Constitution to bear on conflicting rights of suitors under the laws of the Union and the
laws of the States, its records through all these hundred years,
are an illustrious exhibit of that impartial and wise discrimination which constitutes the highest element of judicial wisdom.
If any intelligent student of our institutions has any lingering doubt as to the safety of the reserved rights of the States
of this Union as affected by the jurisdiction of the Supreme
Court, let him resort to the later opinions of the Court on
Constitutional questions arising since the adoption of the Four
ï~~ADDRESS OF MR. BUTLER.
619
teenth Amendment, by which the rights of citizenship and of
citizens all the land over, have been established on their new
and final basis of constitutional guarantees. He will rise from
their perusal disabused of his doubts, marvelling, perhaps, at
the extent to which so soon after the long and bitter conflict,
in which the integrity and supremacy of the Nation has been
tried and tested, and made sure, the strong hand of the Supreme judiciary has upheld the exercise by the States of many
disputed powers, but refreshed with a new sense of the abiding
strength and wisdom of a system rigid enough to hold in
union all these separate States as a Nation, and yet flexible
enough to leave unimpaired the true autonomy of each.
Such is, in brief and imperfect outline, the origin of the
Supreme Court of the United States, and of the grant of its
judicial powers. On this centenary of its organization; in
the city where its earliest jurisdiction was exercised; in the
presence of the Chief Executive, of the heads of our National
Legislature, of our highest State Courts and officers, of citizens representing all the activities of the country, and in the
face of the world, we make profert of this high tribunal as a
proof of the stability and abiding strength of our free constitutional government. As members of the Bar, and as citizens
of this State and of the United States, we bring to it and bespeak for it the homage of national gratitude, and of universal
respect, not so much because it has added illustrious names
to the roll of the world's great jurists and magistrates, or even
because it has so well upheld, in its own sphere, the honor
and dignity of the Nation, as because through all these hundred years of time it has, with strict fidelity, without fear
and without favor, with clean hands and with a pure purpose,
served the People in the wise and patient execution of its
ï~~620 THE SUPREME COURT OF THE UNITED STATES.
high trust to maintain inviolate the absolute supremacy of
Justice.
At the close of Mr. Butler's address the orchestra rendered
a selection from Verdi's "Aida." Mr. Hitchcock, of Missouri,
was then introduced.
ADDRESS OF HON. HENRY HITCHCOCK.
" THE SUPREME COURT AND THE CONSTITUTION."
Mr. Chairman, Mr. Chief-Justice and your Honors, Ladies
and Gentlemen:
In delivering the judgment of the Supreme Court of the
United States in the case of The Stale of Florida v. The
State of Georgia,' Chief Justice Taney said:
"The case, then, is this: Here is a suit between two States, in
relation to the true position of the boundary-line which divides them.
But there are twenty-nine other States who are also interested in the
adjustment of this boundary, whose interests are represented by the
United States. Justice certainly requires that they should be heard before their rights are concluded by the judgment of the Court.... A
suit in a court of justice between such parties, and upon such a question, is without example in the jurisprudence of any other country."
This impressive statement illustrates, but only in part,
the nature, the novelty and the dignity of the unexampled
powers which that Court has exercised during the period of
an hundred years, whose auspicious close we celebrate this day.
During that period, in more than eight thousand deliberate judgments, it has determined questions of public and
private right and duty, and of the interpretation and enforcement of the Constitution and laws under which we live, many
of which have deeply involved the welfare, in the past and
for all time to come, not only of the people of the United
States, but of unborn millions of the human race.
1At December Term, 1854: 17 Howard, 494.
ï~~ADDRESS OF MR. HITCHCOCK. 621
It has been deemed appropriate to this commemoration
that something should be said concerning the exercise of the
powers of the Supreme Court since its organization. Its immense and various work cannot be even outlined here, much
less commented on. At most, within the narrow limits unavoidably prescribed, one may endeavor to point out some of
the broad lines along which it has kept pace with the infant
nation's marvellous growth, and has dealt with exigencies
unforeseen though not unprovided for, by unfolding, with firm
but cautious hand, the broad and prescient purpose of the
Constitution. With unfeigned diffidence, in this presence, is
such a task approached.
The Supreme Court exists in virtue of the express mandate of the Constitution. Its jurisdiction is a part of the
grant of judicial power made by the people of the United
States, to the new government established by them for the
beneficent purposes declared in its simple and majestic preamble. Keeping separate and distinct the three great departments, the legislative, the executive and the judiciary, that
instrument defines the sphere and enumerates the limited powers
of each with unsurpassed simplicity, brevity and precision.
A division of the powers of government was not a political device newly invented by the statesmen who framed the
Constitution of the United States. Aristotle, in the fourth
book of his Po'litics,2 observes that in every polity there are
three departments, the suitable form of each of which the
wise law-giver must consider, and according to the variation
of which one State will differ from another. These he describes as,-first, the assembly for public affairs; second, the
1 U. S. Constitution, Art. III, Sec. I.
'B. IV, Ch. XIV, Gillies' Trans. (Bohn's Ed., x853), pp. 155-6. See Woolsey
Political Science,, II, Ch. IX, p. 259.
ï~~622 THE SUPREME COURT OF THE UNITED STATES.
officers of the State, including their powers and mode of
appointment; and third, the judging, or judicial, department.
The men of 1787 were familiar with this conception, in practice and in theory both. Most of them were men of large experience in the public affairs of their respective States, all which
exemplified it in their charters or constitutions and the
framework of their government, though differing as to degree
and detail. They were also familiar with the theory of the
British Constitution as expounded by Montesquieu and Blackstone. Those celebrated writers dwelt upon what Madison,
in The Federalist,' calls " that invaluable precept," that the
accumulation of all the powers of government in the same
hands, whether of one, a few or many, and whether hereditary, self-appointed or elective, may justly be pronounced the
very definition of tyranny; and they held that Constitution
to be an example of equilibrium secured by a division of
powers. But modern English publicists 2 agree that Blackstone's well-known eulogy3 of the British Constitution involved
a complete misconception of its real character. The Government of Great Britain, carried on by a Ministry responsible
to a Parliament which possesses unlimited legislative power,
is a type, not of a divided, but of a single supreme authority.' The splendid, the unparalleled achievement of our
forefathers lay in their successful application of that principle
to the unprecedented problems before them. For not only did
they distribute among three distinct and independent departments the powers of the national government, at the same time
1 No. XLVII, (J. C. Hamilton's Ed., 1864), pp. 373-4.
2 Bryce, American Commonwealth, I, pp. 26-7, 275-9: Dicey, Law of the Constitution, pp. 7-11.
i x Bla. Comm., pp. 50-I.
Dicey, Law, &c., Ch. I, pp. 37-8, 65: Bagehot, English Const'n (2d. ed., 1873),
pp. 288-9.
ï~~ADDRESS OF MR. HITCHCOCK.
623
securing to that government absolute supremacy within its appropriate but limited sphere while preserving to the several
States the autonomy and internal powers essential to their welfare; but they so framed and established the national judiciary,
the weakest of those departments,' holding neither purse nor
sword, strong only in the reverence of the people for the
sanctions of law, as to make the courts, while strictly exercising their judicial functions in pursuance of established
rules and principles of law, at once the arbiters of public and
private right, and, in the words of Alexander Hamilton,2 "the
bulwarks of a limited constitution against legislative encroachment." The protracted debates of the Federal Convention,
the masterly arguments of Hamilton, Madison and Jay in
The Federalist, show with what patriotic anxiety, what farsighted statesmanship, they labored to accomplish that purpose.
A hundred years have passed, and a great and prosperous
and peaceful people rejoice in commemorating their work.
The Judiciary Department was established by the third
article of the Constitution; which defines the limits of the
judicial power, and vests that power in one Supreme Court
and such inferior courts as the Congress may from time to
time ordain and establish. Under the Judiciary Act of September 24, 1789, a masterpiece of legislation, drafted by Oliver
Ellsworth,3 then a Senator from Connecticut, afterwards ChiefJustice of the Supreme Court, the outlines of the Constitution
were filled up and the grant of judicial power made operative.
Under this Act the Supreme Court, and Circuit and District
SAlexander Hamilton, in The Federalist, No. LXXVIII (J. C. Hamilton's Ed.,
1864), p. 576: De Tocqueville's Democracy in America (Reeves' Transl., 1875), Vol.
I, p. 149: Mr. Justice Miller's Address on the Supreme Court, before the University
of Michigan (Ann Arbor, June, 1887).
2 The Federalist, No. LXXVIII, (J. C. Hamilton's Ed., 1864), p. 579.
3 Van Santvoord's Lives of the Chief-Justices (Ellsworth), pp. 237-40.
ï~~624 THE SUPREME COURT OF THE UNITED STATES.
Courts inferior thereto, were organized upon general lines ever
since substantially adhered to.1
The jurisdiction vested in the Supreme Court by the
Constitution is twofold, original and appellate.2 The former
includes only two classes of cases, namely, all cases affectifng
ambassadors, other public ministers and consuls, and those in
which a State shall be party.
In all other cases, its jurisdiction is appellate, both as to
law and fact, with such exceptions and under such regulations as the Congress shall make.
The powers of the Court have been exercised, in by far
the largest part, in virtue of its appellate jurisdiction. The
vast reach and effectiveness of these powers spring, in large
part, from the fact, the great and novel political fact, that the
Government of the Federal Union is one which, in all its
departments, operates directly upon individuals. This has
been the open secret of its successful working,-this the feature which, more than any other, distinguishes it from every
federal system that went before.3
The Confederation of 1781, well described as "a rope of
sand," swiftly crumbled and fell to pieces when the compulsive force of a common external danger was withdrawn.4
Operating only upon States, whose legislatures and officials at
their own pleasure obeyed, or contemptuously disregarded, the
requisitions of its Congress and the mandates of its so-called
1 See Rev. Stat. U. S. (1868), Tit. XIII, Ch. III, VII, XI.
2 U. S. Const., Art. III, Sec. 2.
3 "The great and incurable defect of all former federal governments is that they
were sovereignties over sovereigns, and legislations, not for private individuals, but
for communities in their political capacity." i Kent's Comm., p. 217.
* I Kent's Comm., p. 216. Fiske's "Critical Period," Ch. IV, "Drifting towards
anarchy."
5 Madison's Introduction to Debates of Federal Convention (Elliot's Ed., 1845),
ï~~ADDRESS OF MR. HITCHCOCK. 625
courts,' its efforts to control them only invited internal strife
and anarchy.2
In March and April, 1787, amid gloom so deep and general that even John Jay asked the question,3 "Shall we have
a king? " and when the stoutest hearts awaited with trembling
hope the result of the Philadelphia Convention, James Madison, in letters to Washington, Jefferson and Randolph, submitted what he afterwards described4 as"A sketch on paper, the earliest, perhaps, of a constitutional government for the Union, organized into regular departments, with physical
means operating on individuals, to be sanctioned by the people of the
Slates, acting in their original and sovereign character."
In that sketch the Constitution lay in embryo.
The judicial power of the United States, thus vested in
the Supreme and inferior courts, the Constitution declares6
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;
p. I19: See I Bancroft's Hist. Const., p. 254. Per Marshall, C. J., in Cohens v.
Virginia, 6 Wh. 388: "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 a knowledge
of this fact, and under its full pressure, a convention was assembled to change
the system."
'See Van Santvoord's Lives of the Chief-Justices (Ellsworth), pp. 20-4: compare Penhallow v. Doane's Adm'rs, 3 Dall. 82-5: U. S. v. Peters, 5 Cranch, 137.
2 i Kent's Commentaries, pp. 216-I8.
I I Bancroft's Hist. Const., p. 276.
'Introduction to Debates, &c., Madison Papers, 5 Elliot's Debates (Ed. 1845),
p. 120.
6 U. S. Constitution, Art. III, Sec. 2.
40
ï~~626 THE SUPREME COURT OF THE UNITED STATES.
"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 one respect only have the people of the United States
modified this grant of judicial power; by the Eleventh Amendment to the Constitution, presently to be mentioned.
To the Supreme Court, "the living voice of the Constitution," belongs the ultimate interpretation1 and therefore the
complete development of the powers which that instrument
confers, so simple in their enumeration, so vast and varied in
respect of the interests to which they relate. In fulfilling its
great trust, that Court, in whatever has concerned the national welfare, has stood for the conscience of the people of
the United States,-and while expounding their supreme will
as expressed in the fundamental law, has enforced its selfimposed restraints for the protection of the rights which that
law secures.
Within their respective spheres, all the powers granted
by the Constitution are supreme. But their sphere is limited,--first, by the nature of the powers themselves; secondly,
by the extent of the grant creating them.
The jurisdiction of a Court is defined to be, the power to
1 Martin v. Hunter's Lessee, I Wheaton, 348; Cohens v. Virginia, 6 Wh. 388,
404; Ableman v. Booth, 21 Howard, 520, 525; The Mayor v. Cooper, 6 Wallace,
253. I Story on the Constitution, Sec. 375.
s U. S. Constitution, Art. VI.; U. S. v,. Fisher, 2 Cranch, 397; Cohens v. Virginia, 6 Wh. 414; Gibbons v. Ogden, 9 Wh., 196-7; Tennessee v. Davis, 100 U. S., 263.
ï~~ADDRESS OF MR. HITCHCOCK. 627
hear and determine a cause.' That power can rightfully be
exercised only for the determination of an actual controversy,
brought before the Court in the form prescribed by law;' and
the judicial power of the United States extends to such cases
or controversies only as specified in Article III of the Constitution, or in some Act of Congress pursuant thereto.
These cardinal propositions have been illustrated throughout
the history of the Supreme Court, on many important occasions.
In 1792, Chief Justice Jay and his associates declined3 to
execute an Act of Congress which assigned to the Circuit
Courts certain duties concerning pensions, not of a judicial
nature: in 1851, an Act passed in 1849 was construed upon
the same principle. In 1793, Washington, upon the advice of
his cabinet, embarrassed by the audacious intrigues of the
French Minister Genet, requested the opinion of the Judges
of the Supreme Court as to the proper construction of the
treaty with France: but they declined to answer,' holding it
improper to give opinions upon any controversy not brought
before them in legal form. The extreme importance of this
principle will become still more apparent in its relations to
that great power of the Court, to declare void a law not warranted by the Constitution.
So, in cases properly brought before it, the Court has
steadily disclaimed any power in the judiciary to determine
I U. S. v. Arredondo, 6 Pet., 709; Rhode Island v. Massachusetts, 12 Pet., 718;
Grignon's Lessee v. Astor, 2 How., 338.
s 2 Story, Constitution, Sec. 1646; I Kent's Comm., p. 326; Osborn v. U. S. Bank,
9 Wh., 819; Decatur v. Paulding, 14 Pet., 515.
' Hayburn's Case, 2 Dall., 409; and see U. S. v. Yale Todd, 13 How., 52, note.
'U. S. v. Ferreira, 13 How., 40.
' Marshall's Life of Washington, Vol. V, Ch. VI, pp. 433, 44x; 2 Story on Constitution, Sec. 1571.
ï~~628 THE SUPREME COURT OF THE UNITED STATES.
questions of a political nature, or which involved the exercise
of executive or legislative discretion,1 or of the powers reserved
to the States.
In a series of decisions from 1829 to 1889, involving
questions arising under treaties2 with various European powers,
with China, and with Indian tribes, the Court has uniformly
held itself concluded by the political acts of the executive
and legislative departments.
Many other judgments of great importance illustrate its
adherence to that general rule, in respect of the powers of
Congress, of the Executive, and of the several States. Thus,
in 1819, the Court affirmed, in McCullock v. Maryland,' the
constitutional power of Congress to create the Bank of the
United States, as an appropriate means of executing undoubted powers of the government; and in Juillard v. Greenman," in 1883, the power of Congress to make United States
treasury notes a legal tender, as another means appropriate
to that end; but in both cases held that the expediency of
exercising such a power was a political question upon which
the Court was not authorized to pass. In Martin v. Mott,5
in 1827, it held that the decision of the President, under the
Constitution and Acts of Congress, that an exigency had
arisen for calling out the militia to repel invasion, was conclusive upon the courts. In Kendall v. United States,6 in 1838,
1 McCulloch v. Maryland, 4 Wheaton, 423; Decatur v. Paulding, 14 Peters, 516;
License Tax Cases, 5 Wallace, 469.
2 Foster v. Neilson, 2 Pet., 309; U. S. v. Arredondo, 6 Pet., 710-12; Lattimer v.
Poteet, 14 Pet., 14, 16; Doe v. Braden, 16 How., 657; Fellows v. Blacksmith, 19
How., 372; Phillips v. Payne, 92 U. S., 132; Chew Heong v. U. S., 112 U. S., 540;
"Head Money Cases," 112 U. S., 598; U. S. v. Rauscher, 119 U. S., 418-19; The
Chinese Exclusion Case, 13o U. S., 6o6.
3 4 Wheaton, 423. b 12 Wh., 19.
4 IIo U. S., 421, 450. 6 12 Peters, 524, 61o.
ï~~ADDRESS OF MR. HITCHCOCK. 629
it held that so far as the President's powers are derived from
the Constitution he is beyond the reach of any other department except through the impeaching power: in Decatur v.
Paulding,' in 1840, that the Secretary of the Navy can not
be compelled by mandamus to perform an executive act involving the exercise of judgment: in Luther v. Borden,'
in 1848, that the Court was bound by the President's decision as to which of two rival organizations was the lawful State government of Rhode Island: in Texas v. White,' in
1868, that the State government of Texas which Congress
and the President had recognized, must be held competent to
prosecute a suit in the name and behalf of that State: in
Cherokee Nation v.Georgia,4 in 1831, that even if the Cherokee Nation had been a foreign State within the meaning of
the Constitution, the Court could not entertain its bill to
enjoin the State of Georgia from executing laws of that State
alleged to interfere with the political rights of that tribe: in
Georgia v. Stanton,' in 1867, that the Court could not entertain a bill by the State of Georgia to enjoin the Secretary of
War from carrying into execution the so-called Reconstruction
Acts, since it necessarily involved the adjudication of questions and rights of a political character. Besides these, I can
only allude to that highly important series of decisions from
the License Tax Cases,' in 1866, to Kidd v. Pearson,' in 1888,
including the Louisiana Slaughter House Cases,8 the Mississzifpi
Lottery Case' (afterwards clearly distinguished from the New
Orleans Lottery Case10), the Pennsylvania Oleomargarine Case,"
14 Pet., 497. 2 7 Howard, I. 7 Wall., 700, 732. 5 Pet., I, 2o.
6 6 Wall., 50 65 Wall., 462. 1 I28 U. S., I.
8 Butchers' Benevolent Ass'n, &c. v. Crescent City, &c., Slaughter-house Co., i6
Wall., 36. 9 Stone v. Mississippi, 'o U. S., 814.
10 New Orleans v. Houston, I19 U. S., 265.
" Powell v. Pennsylvania, 127 U. S., 678.
ï~~630 THE SUPREME COURT OF THE UNITED STATES.
and the Prohibitory Liquor Law Cases, from Iowa,' Massachusetts 2 and Kansas,' in which, under varying circumstances,
the Court steadily upheld the police power of the States, when
exercised consistently with the restrictions of the Constitution.
I may not longer dwell upon this characteristic of the
exercise of its powers. Omitting allusion, for the present, to
the exceptional circumstances and the momentous political
consequences of the opinions in the Dred Scott Case, the history of the Court, in that regard, may be epitomized in the
impressive words of Chief Justice Chase, announcing the dismissal of the appeal in Ex parte McCardle:'4
"Judicial duty is not less fitly performed by declining ungranted
jurisdiction than in exercising firmly that which the Constitution and
the laws confer."
Turning to the affirmative exercise of its powers, how vast
is the field which opens to view,-how varied, how important,
how exalted the rights and duties and interests which it has
determined!
Chief among those powers, and that upon which has depended the due exercise of every other, is that of interpreting
the supreme law of the land,-for, as Chief-Justice Marshall
said,5
" It is emphatically the province and duty of the judicial department
to say what the law is. Those who apply the rule to particular cases,
must of necessity expound and interpret that rule."
Consider for a moment what this implied, a hundred years
ago. To the Court itself, a tribunal without an example, was
I Bartemeyer v. Iowa, 18 Wall., 129.
= Boston Beer Co. v. Massachusetts, 97 U. S., 25.
$ Mugler v. Kansas, 123 U. S., 623; Kidd v. Pearson, 128 U. S., I.
' 7 Wallace, 515. 1 Marbury v. Madison, I Cranch, 177.
ï~~ADDRESS OF MR. HITCHCOCK. 681
confided the interpretation and the development of a Constitution which had no precedent. That Constitution was itself an
experiment, a compromise-" extorted," as John Quincy Adams
afterwards said,' "from the grinding necessities of a reluctant
people;" the people of thirteen independent States, reluctant to
surrender on any terms, even to a government created and controlled by themselves, the separate and jarring powers which
threatened, like the warriors sprung from the dragon's teeth
sown by Kadmus on Theban soil, to perish in deadly mutual
strife. It has been truly said 2 that "the decision hung upon
a single hair," even in the Philadelphia Convention, still more
in some of the State Conventions which ratified its work.
But the experiment was begun; the several departments of
the new government assumed the exercise of the powers entrusted to each.
In the first contested cases before the Court, the State
of Georgia was complainant and creditor. In the second,4 that
State was sued in the Supreme Court as a debtor, by Chisholm, a citizen of South Carolina, in July, 1792. His right
to sue depended upon that clause of the Constitution which
extended the judicial power to "controversies between a State
and citizens of another State;" and similar suits, brought
against other States, presented the like question.5 There could
have been no severer test of the wisdom, the courage or the
power of the new Court. The objection angrily made to the
1 Address on "The Jubilee of the Constitution," before the New York Historical.
Society, in 1839.
2 Von Holst's Const. Hist. of U. S., Vol. I, p. 50.
* Georgia v. Brailsford, 2 Dall., 4o2.
'Chisholm v. Georgia, 2 Dall., 419.
* Van Staphorst v. Maryland, 2 Dall., 401; Oswald v. New York, lb., 40 Pitkin states (History of U. S., Vol. II, pp. 335) that a suit was also commenced by
an individual against the State of Massachusetts in the summer of 1793.
ï~~632 THE SUPREME COURT OF THE UNITED STATES.
Constitution, in 1788, that under the jurisdiction which that
clause conferred upon the Federal courts, the sovereignty of
the State might be arraigned like a culprit at their bar,' had
been met by earnest disclaimers from such Federalists as
Hamilton2 and John Marshall;3 but that jurisdiction was now
invoked in earnest. The summons, served on the Governor
and Attorney-General, was ignored. The Court, "to avoid
every appearance of precipitancy," postponed for six months
the plaintiff's motion for a default. In December, the Legislature of Georgia passed resolutions flatly denying the obligation of the State either to answer the process or to obey the
judgment of the Court;b and at the February Term, 1793, its
solemn protest and remonstrance was presented by eminent
counsel, who declined to take any part in the argument.
Randolph, Attorney-General of the United States, appeared
for the plaintiff, and the courageous opening sentences of his
argument 6 show, not less plainly than contemporary records,'
how intense were the alarm and excitement prevailing throughout the States, almost all of which were staggering under
great burdens of debt.8 After full deliberation, the judges delivered opinions seriatim, in which, with one dissenting voice,
the jurisdiction of the Court was firmly maintained.? JudgSSee George Mason's speech in the Virginia Convention, 3 Elliot's Debates,
pp. 526-7.
2 The Federalist, No. LXXXI (J. C. Hamilton's Ed., 1864), pp. 601-2.
S3 Elliot's Debates (Virginia Convention), Ed. 1836, p. 555.
4 2 Dallas, 4o10. si Schouler's Hist U. S., p. 274. 6 2 Dallas, 419.
' See Chief-Justice Marshall's reference to this in Cohens v. Virginia, 6 Wheaton,
406.
8 Pitkin states that the debts of Massachusetts and South Carolina amounted to
more than five and a half millions, and those of the other States together were
estimated at between fourteen and fifteen millions. Hist. of U. S., Vol. II, p. 341.
9 For these opinions, see 2 Dall., 429-79; Iredell, J., dissenting; Blair, Wilson
and Cushing, JJ., and Jay, C. J., concurring.
ï~~ADDRESS OF MR. HITCHCOCK.
633
ment by default was rendered against the State and an inquiry of damages ordered. Georgia responded by a statute
denouncing the penalty of death against any one who should
presume to execute such process within her jurisdiction.' But
the threatened collision never came. The duty of the Court
had been fulfilled, and its power asserted, with a dignity and
courage which gave new weight to the sanctions of the Constitution. The question of changing the fundamental law was
submitted to the people of the United States, in the deliberate method provided by that instrument, pending which the
plaintiff made no effort to enforce the judgment; and in the
case of Hollingsworth v. Virginia,' in 1798, the Supreme Court,
declaring the Eleventh Amendment to have been constitutionally adopted, renounced "any jurisdiction, in any case, past
or future, in which a State was sued by the citizens of another
State, or by citizens or subjects of any foreign State."
These events have been dwelt upon, because their deeper
significance was so great. The Court, upon the very
threshold of its career, was confronted with that "ultimate
question," so clearly discerned, so bluntly put, in the opinion
of Mr. Justice Wilson, and by none more cogently answered
than by Chief Justice Jay,-" Do the people of the United
States form a nation?"' The judgment in that case involved
not only the interpretation but the stability of the Constitution; not only the power of the Court but the endurance of
the government of which it was a part. And when the people
of the United States, obedient to the mandates of the Constitution, gave expression through its peaceful methods to that
supreme and general will which had superseded the nerveless
compact of independent and rival States, and set new limits
"3 Dallas, 378.
2 2 Dallas, 453.
ï~~684 THE SUPREME COURT OF THE UNITED STATES.
to their grant of judicial power, they affirmed by that act its
reality and its value, and strengthened it for future tasks.
The vital principle maintained in the Chisholm Case was
that of the supremacy of the United States in the exercise of
the judicial power, within the limits prescribed by the Constitution, whatever the Court should determine those limits to be.
The Eleventh Amendment narrowed those limits in respect of
what Chief Justice Jay called "the suability of a State;" but
its ratification, so far from conflicting with that principle,
affirmed it.
In January, 18oi, John Marshall became Chief Justice.
During the thirty-four years of his illustrious service, sixty-one
decisions on constitutional questions were rendered by the Court,
of which thirty-six were from his pen. Some of the fundamental doctrines they established, already mentioned in part,
must again be referred to in general terms. But of those
earlier judgments, some few call for special mention, even in
a sketch so brief as this; for in them were laid, broad and
deep, the foundations of American constitutional law.
In the case of Marbury v. Madison, decided in 1803, the
Court defined with extraordinary clearness and force the limits
of the respective powers of the three great departments of the
government. It was demonstrated that a legislative Act repugnant to the Constitution must be disregarded by the Courts as
void; that executive officers may be compelled by the judicial
power to discharge a duty clearly imposed upon them and not
involving official discretion, for the government of the United
States, said the Court, is a government of laws and not of men;2
and that the province of the Courts is, solely, to decide on the
rights of individuals, not to determine questions in their nature
1February Term, 1803, 1 Cranch, I 7.
2 Cranch, 163. See U. S. ex rel. McBride vs. Schurz, 102 U. S., 378.
ï~~ADDRESS OF MR. HITCHCOCK.
685
political, or to intermeddle with the discretion committed by
the Constitution and laws to any other department
The case of The United States v. Peters, in 1809,2 arose
upon a controversy which first brought into open conflict the
judicial power of the United States and the legislative and
executive power of a State, arrayed in armed resistance to the
process of the Federal Courts. Its details cannot be given
here. It was a legacy from the feeble days of the Confederation, thirty years before.3 The result demonstrated that the
people of the United States, in adopting the Constitution of
1787, had established "a real government, operating upon persons and territory and things."'4 The formal judgment of the
Court was simply a peremptory writ of mandamus, commanding the Judge of the District Court of the United States, for
the Pennsylvania District, by proper process to enforce obedience to a judgment of that Court in favor of Olmstead and
others against Serjeant and another. The real defendant was
the State of Pennsylvania, which, by express legislative Act in
18oi, had not only claimed the fund to which the controversy
related, but, relying upon the Eleventh Amendment, expressly
denied the jurisdiction of the Federal Court and the validity of
its judgment, and required the Governor to resist its execution.
1I Cranch, 170.
2 5 Cranch, 115.
SThe matter in dispute was a fund of about Â~LJ1,500, part of the proceeds of the
Sloop Active, condemned in 1777 as prize by the Pennsylvania Court of Admiralty,
which awarded the entire proceeds to the State of Pennsylvania. The Committee of
Appeals, established by Congress under the Confederation, reversed this decree, in favor
of Olmstead and others, claimants. This judgment was contemptuously disregarded by
the State officers, and remained dormant until enforced by the proceedings referred to in
the text. The facts are given in the opinion of Marshall, C. J., 5 Cranch, 137. See also
the opinion of Paterson, J., in Penhallow v. Doane's Administrators, 3 Dallas, 82-85, and
Hildreth 's History of the United States, Vol. III, Ch. XXII, pp. 164, i65.
4 Ex parte Siebold, o100 U. S., 394.
ï~~636 THE SUPREME COURT OF THE UNITED S TA TES.
The vital question involved was thus stated in the opinion of
Chief Justice Marshall:1
" If the legislatures of the several States may, at will, annul the
judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn
mockery; and the nation is deprived of the means of enforcing its laws
by the instrumentality of its own tribunals. So fatal a result must be
deprecated by all; and the people of Pennsylvania, not less than the citizens of every other State, must feel a deep interest in resisting principles
so destructive of the Union, and in averting consequences so fatal to
themselves."
To the argument based on the XIth Amendment, the
Court replied:2
"The right of a State to assert, as plaintiff, any interest it may
have in a subject, which forms the matter of controversy between individuals, in one of the courts of the United States, is not affected by this
amendment; nor can it be so construed as to oust the court of its jurisdiction, should such claim be suggested. The amendment simply provides, that no suit shall be commenced or prosecuted 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."
In obedience to the mandate of the Supreme Court, the
District Judge issued his writ. Its execution was obstructed
by an armed force of State militia, assembled under the
orders of the Governor, in pursuance of the State law. The
Marshall summoned a posse comitatus of two thousand men,
but gave time for reflection. The State authorities gave way,
the troops were withdrawn, and the judgment of the Court
was peacefully enforced. The supremacy of the United States
15 Cranch, 136.
25 Cranch, 139.
ï~~ADDRESS OF MR. HITCHCOCK. 687
was further completely vindicated, notwithstanding great popular sympathy and excitement, by the speedy indictment and
conviction, in the United States Circuit Court, of the officers
commanding the State troops, for unlawful resistance to civil
process; but the sentence of fine and imprisonment imposed
upon them was wisely remitted by the President, on the
ground that they had acted under a mistaken sense of duty.
Still more important was the case of Cohens v. Virginia,
decided in 182 1:1 the greatest, perhaps, of those great earlier
judgments in which the national supremacy, within the limits
of the Constitution, was maintained by the judicial power of
the United States. It directly involved the right and power of
the Supreme Court, in the exercise of its appellate jurisdiction,
to review and control the judgments of State Courts in cases
arising under the Constitution and laws of the United States.
In Marlin v. Hunter's Lessee,2 five years before, that power had
been asserted by the Court, in one of Mr. Justice Story's ablest
opinions, in a suit between individuals concerning a title whose
validity depended upon the construction of a treaty of the
United States. In Cohens v. Virginia was brought up by writ
of error the judgment of a Virginia Court imposing a trifling
fine upon the defendants below, for selling lottery tickets, contrary to a State law, but authorized, as they alleged, by an
Act of Congress. Through its Attorney-General, the State of
Virginia strenuously denied the jurisdiction of the Court, upon
grounds whose real significance was thus set forth by the
Chief Justice:
"The questions presented to the court by the first two points made
at the bar are of great magnitude, and may be truly said vitally to affect
the Union. They exclude the inquiry whether the Constitution and laws
1 6 Wheaton, 264.
2 I Wheaton, 304. 1 6 Wheaton, 377.
ï~~638 THE SUPREME COURT OF THE UNITED STA TES.
of the United States have been violated by the judgment which the
plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective.
They maintain that the nation does not possess a department capable of
restraining peaceably, 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 submitting to such
attempts, or of resisting them by force. They maintain that the Constitution bf the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this
power may be exercised in the last resort by the courts of every State
in the Union. That the Constitution, laws and treaties may receive as
many constructions as there are States; and that this is not a mischief,
or, if a mischief, is irremediable." 1
With overwhelming power of argument these propositions
were shown to be inconsistent with the Constitution and destructive of the purposes for which it was framed. One passage only can be quoted, which sets forth with matchless
clearness and simplicity the relations of the general government to the States.
"That the United States form, for many, and for most important
purposes, a single nation, has not yet been denied. In war, we are one
people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the
American people are one; and the government which is alone capable of
controlling and managing their interests, in all these respects, is the
government of the Union. It is their government, and in that character
they have no other. America has chosen to be, in many respects, and
to many purposes, a nation; and for all these purposes her government
is complete; to all these objects, it is competent. The people have declared, that in the exercise of all powers given for these objects, it is
supreme. It can, then, in effecting these objects, legitimately control.all
individuals or governments within the American territory. The constitu
16 Wheaton, 377.
ï~~ADDRESS OF MR. HITCHCOCK. 689
tion and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States are
constituent parts of the United States. They are members of one great
empire-for some purposes sovereign, for some purposes subordinate." 1
In other famous judgments the Court laid down the rule
in accordance with which should be exercised its great power
of interpreting the supreme law of the land. Thus, in United
States Bank v. Deveauz,2 it declared,"The duties of this Court, to exercise jurisdiction where it is conferred, and not to usurp it where it is not conferred, are of equal obligation. The Constitution, therefore, and the law, are to be expounded,
without a leaning the one way or the other, according to those general
principles which usually govern in the construction of fundamental or
other laws.,
In Gibbons v. Ogden,' it said,"The enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their
natural sense, and to have intended what they have said. If, from the
imperfection of human language, there should be serious doubts respecting
the extent of any given power, it is a well settled rule that the objects
for which it is given, especially when those objects are expressed in the
instrument itself, should have great influence in the construction...
We know of no rule for construing the extent of such powers, other than
is given by the language of the instrument which confers them, taken in
connection with the purposes for which they were conferred."
In Ogden v. Saunders,4 the rule was thus stated,"To say that the intention of the instrument must prevail; that this
intention must be collected from its words; that its words are to be
understood in that sense in which they are generally used by those for
1 6 Wheaton, 413-14. '9 Wheaton, i88.
2 5 Cranch, 87. * I2 Wheaton, 332.
ï~~640 THE SUPREME COURT OF THE UNITED STATES.
whom the instrument was intended; that its provisions are neither to be
restricted into insignificance nor extended to objects not comprehended in
them, nor contemplated by its framers; is to repeat what has been already
said more at large and is all that can be necessary."
I cannot further enumerate those earlier judgments, or
dwell upon the successive steps by which the brief and pregnant clauses of the Constitution were interpreted and developed by the Court. During more than four-score years, in
many other important judgments, from the decision in Marbury v. Madison, in 1803, to the Chinese Exclusion Case,' in
1889, under widely varying circumstances, it has steadily maintained the supremacy of the United States within its appropriate sphere.2 It was the surpassing good fortune of the people
of the United States-rather let us say an earnest of their
guidance by a benign and superior Power,-that during the
formative period of their history, for an entire generation, this
was mainly the work of the great Chief Justice, whose acute
and powerful intellect, whose exalted purity of character, whose
rare union of unflinching courage with judicial caution, and
whose wide and varied experience, at home and abroad, in the
service of his State and of the United States, peculiarly fitted
him for such a task. Beacon-lights of the nation's jurisprudence, illuminating with prophetic radiance the dark waters of
the distant future, those luminous judgments have shone out,
1 130 U. S., 581.
2 See, among others, the Chinese Exclusion Case, 130 U. S., 604, citing Cohens
v. Virginia, 6 Wheaton, 413, and Knox v. Lee, 12 Wallace, 555; also Bowman v.
Chicago R'y Co., 125 U. S., 465 (reviewing many cases); Philadelphia SS. Co. v.
Pennsylvania, 122 U. S., 326; Wabash, &c., R'y Co. v. Illinois, i8 U. S. 557;
Yick Wo v. Hopkins, Ib., 356; Ex pane Yarbrough, Io U. S., 666; Tennessee v.
Davis, ioo U. S., 263; Ex parte Virginia, lb., 346; Ex parle Siebold, lb., 392-4;
Railroad Co. v. Hudson, 95 U. S., 465; Tarble's Case, 13 Wall., 406-7; Ableman
v. Booth, 21 How., 517; Brown v. Maryland, 12 Wh., 448: Gibbons v. Ogden, 9
Wh., 196-7: McCulloch v. Maryland, 4 Wh., 405.
ï~~ADDRESS OF MR. HITCIHICOCK.
641
and still shine for us afar, marking out its course, warning it
of perils on either hand,-the quicksands of legislative or executive encroachment, and the dangerous opposing reefs of
uncontrolled State sovereignty, white with the breakers of
anarchy and civil war.
The jurisdiction of the Supreme Court, already distinguished as original and appellate, may be regarded from another
point of view. In that great opinion in Cohens v. Virginia,
Chief Justice Marshall pointed out' that jurisdiction is given
to the Courts of the Union in two classes of cases. In one
class, it depends on the character of the parties, whatever the
controversy may be: in the other, upon the character of the
cause, whoever may be the parties. In the former, a hearing
is secured to citizen and alien alike, unbiased by the prejudices
of locality; while to the proudest State of the Union, and to
the representatives of friendly foreign States, is afforded a
tribunal of appropriate dignity. In cases arising under the
latter, for the most part, have come before the Court those
great controversies affecting the national peace and harmony,
the necessity for whose adjustment brought about the compromises of the Constitution. It is in the development and
application of the powers relating to these, that the most important and characteristic work of the Court has been performed.
Few and simple are the express provisions of the Constitution upon which their efficiency mainly rests. They are,
that the judicial power of the United States shall extend to
every case, in law and equity, arising under the Constitution,
laws and treaties of the United States; and that the Constitution and the laws and treaties made in pursuance thereof
"shall be the supreme law of the land and the judges in
every State shall be bound thereby." 2
6 Wheaton, 378. 2 U. S. Constitution, Art. VI.
41
ï~~642 THE SUPREME COURT OF THE UNITED STATES.
SFrom these, by inevitable consequence, developed and applied by the Court as each case has arisen, it follows that
the judicial power of the United States, like the legislative and
executive, each within its prescribed limits, operates directly
upon individuals; that it controls the unauthorized judgments
of State Courts; and that it must declare and treat as void
any law, State or Federal, not warranted by the Constitution.
Without these powers, the government of the Union could
not endure. Lacking them, the Confederation fell to pieces, a
barrel without hoops, a government only in name. To us, the
beneficent consequences of their exercise are so familiar that
we do not always realize their transcendent importance, or the
jealous apprehensions which they at first encountered. But
such acceptance of them is the result of a century of judicial
decisions: and it illustrates both the tenor of those decisions,
and the reverence for law which is at once the characteristic
of the American people and the indispensable condition upon
which their liberties must be maintained.
More than seventy years have passed since the Supreme
Court first vindicated, in Martin v. Hunter and Cohens v. Virginia, its power and duty under the Constitution and laws of
the United States, to review and control the judgments of State
courts by which should be denied any right or privilege claimed
under the authority of the United States.
No power of the Courth as been more jealously opposed: for
against it were often arrayed the angry passions and prejudices
aroused by State pride and fostered by local interests. A remarkable illustration of this is found in the controversy, sixty
years ago, between the State of Georgia and the Cherokee
tribe of Indians,' the details of which belong to the political
1 See Cherokee Nation v. Georgia, 5 Peters, 15; Worcester v. Georgia, 6 Peters,
515, 561.
ï~~ADDRESS OF MR. HITCHCOCK.
648
history of the country. Still more threatening was the opposition to it growing out of the controversies relating to slavery.'
But no power of the Court has been more firmly maintained,
or is now more completely established and acknowledged.
But while thus maintaining the just supremacy of the
Constitution and laws of the United States, the Court has with
equal emphasis upheld the authority of State officers and
State courts in their appropriate and independent sphere,2 and
asserted the paramount duty3 of both State and Federal courts
to "co-operate as harmonious members of a judicial system coextensive with the United States."
A power so unique, so far-reaching, was never before exercised by any tribunal. Springing from our dual system, of
which it is at once a characteristic and an essential feature,
it is a purely judicial, never a political power. Under circumstances infinitely various, it has protected the personal rights
to life, liberty and property which are guaranteed by the Constitution; while its uniform and benignant operation has
proved-in the words of Chief Justice Marshall-'
"indispensable to the preservation of the Union, and consequently, of the
independence and liberty of these States."
No exercise of the judicial power has excited among forSAbleman v. Booth, 21 Howard, 506.
SSee among others, Kidd v. Pearson, 128 U. S. i: Mugler v. Kansas, 123 U. S. 623;
Beer Co. v. Massachusetts, 97 U. S 25; Bucher v. Cheshire R. R. Co., 125 U. S. 584;
Morgan S. S. Co. v. Louisiana, Board, &c., I18 U. 8. 455; Coe v. Erroll, i16 U. S. 517;
N. O. Gaslight Co. v. Louisiana Light Co., 115 U. S. 650; Barbier v. Connolly, I 13 U. S.
27; Stone v. Mississippi, lox U. S. 814; Patterson v. Kentucky, 97 U. S. 5ol; Slaughterhouse Cases, 16 Wall, 36; Texas v. White, 7 Wall, 70oo; Mayor of New York v. Miln, ii
Peters, o02; License Cases, 5 How. 504.
3 See Ex pare Royall, 117 U. S. 252; Covell v. Heyman, tII U. S. 182; Burgess v.
Seligman, 107 U. S. 34; Taylor v. Carryl, 20 How. 595.
4 Craig v. Missouri, 4 Peters, 438.
ï~~644 THE SUPREME COURT OF THE UNITED STATES.
eign jurists so great admiration as that by which is treated
as void and inoperative a law repugnant to the Constitution:
a power habitually exercised by both State and Federal courts,
and familiar to Americans.
Neither the Federal nor any State constitution in "terms
grants such a power. It results from established legal principles, whenever the mandate of an inferior conflicts with that
of a superior legislative authority; whether the former be a
corporate by-law or municipal ordinance transgressing the
charter, or a legislative enactment in disregard of constitutional
limitations. In exercising it, the Court simply fulfils its judicial duty of declaring the supreme law and applying it to
the case in hand. Hence its limits are, that it can not be
invoked until such a case has arisen for judicial determination; that only in such a case can it be exercised; and that
in such case, accurately speaking, the Court determines only
the rights of the parties thereto.
It is therefore essentially a law-interpreting, not a lawmaking power. It secures obedience to the mandates of the
Constitution by substituting for the discussion of pending
measures of legislation or abstract theories of government,
and for dangerous conflicts between officers of State or aspirants for power, the deliberate adjudication of concrete rights
by an impartial tribunal, invoked not at the will of the judge
but at the demand of the parties concerned.
Recent English writers of high repute have remarked,1
and with truth, that this feature of our system was not novel
nor original with the framers of the Federal Constitution.
Such a power had been asserted by State courts before 1787.2
I Bryce, The American Commonwealth, Vol. I, p. 250; Dicey, Law of the Constitution, p. 151.
2 Trevett v. Weedon, decided in 1786 by the Superior Court of Rhode Island,
ï~~ADDRESS OF MR. HITCHCOCK.
645
It was so clearly recognized, in principle, in the debates of
the Federal Convention, that it was one ground of their sagacious rejection of the proposal' to confer upon the judiciary,
jointly with the executive, the power of negativing legislative
Acts. But in this, as in other respects, that which justifies
Mr. Gladstone's well-known eulogy of the American Constitution as "the most wonderful work ever struck off at a given
time by the brain and purpose of man," is not that its framers
invented new methods of government, or attempted to impose
Utopian theories upon a reluctant people, but that in constructing a new Federal system, beyond all precedents, they
made use, with unexampled skill, of existing institutions, inherited traditions and modes of thought sanctioned by established laws, so adapting these to the new exigencies that the
new order should not abruptly break with the old, but should
be in truth its highest development and richest fruit.
In the great case of Marbury v. Madison, already mentioned, the Court first formally asserted the power last menis cited in Cooley's Constitutional Limitations, p. i6o, Note 3, as the earliest decision of this kind. A similar decision by the Supreme Court of New Jersey, in
1780, is mentioned by Prof. H. W. Rogers in his Introduction (p. o10) to the Lectures on the Constitutional History of the United States, delivered at the University
of Michigan in 1889.
'See Luther Martin's objections to the "double negative" it would give to
the judges; Elliot's Debates, Vol. V, pp. 346-7; also, Bancroft's History of U. S.
Constitution, Vol. II, pp. 195-6. The proposition to associate the judges with the
executive as a council to revise laws was part of Randolph's original plan. It
was supported by Madison, Ellsworth, Mason and James Wilson, by whom it was
unsuccessfully renewed; see Elliot's Debates, Vol. V, pp. 128, 151, 155, 164-6, 344-9.
The power of the courts, under a written constitution, to pass upon the validity
of legislative Acts, was distinctly recognized in the Federal Convention, by Gerry,
Luther Martin, Mason, Morris and Madison (Elliot's Debates, Vol. V, pp. 15r,
346-7, 355-6); also in the Virginia Convention, by Patrick Henry, Marshall and
Grayson (Ib., Vol. III, pp. 539, 540, 553, 567); also by Hamiltou in The Federalist,
No. LXXVIII.
ï~~846 THE SUPREME COURT OF THE UNITED STATES.
tioned, upon grounds so lucidly and impregnably set forth that
it has never been questioned. Since then it has been exercised in more than two hundred cases; in twenty of which
Acts of Congress, in the remainder many legislative and
municipal enactments in thirty-four of the States, were held
void as repugnant to the Constitution or laws of the United
States.' With far greater frequency this power has been invoked in vain: 2 for the maxim of the Court, from the first,
has been that it should never "on slight implication or vague
conjecture" pronounce an Act of the Legislature void, nor
unless upon "a clear and strong conviction of its incompatibility with the Constitution."'3 But when we consider the
amazing growth of the nation, in numbers, in wealth, and in
territory, which these cases reveal, still more the phases of its
history and the variety and vast importance of the controversies to which they relate, how impressive an illustration do
they afford of the enlarging scope and influence of the powers
exercised by the Court since its organization, and its relations
to the jurisprudence of the country! For they exemplify not
only its power to determine the validity of a State law or
constitutional provision, as well as its power to review the
judgments of State courts, often concurrently exercised, but
also the enforcement by it of both classes of restrictions upon
the States, as well those expressly declared in the Constitution as those necessarily implied from the powers granted
to Congress.
Take, for one example, that vital and ever-enlarging ques1 For a list of these cases, see Appendix (p. ccxxxv). to Vol. 131 of U. S.
Reports.
2 See Mr. Justice Miller's remarks in the Trade-Mark Cases, loo U. S. 96.
F'letcher v. Peck, 6 Cranch, 128; Dartmouth College v. Woodward, 4 Wheaton,
6z5; Trade-Mark Cases, ioo U. S. 96.
ï~~9
ADDRESS OF MR. HITCHCOCK. 647
tion of the power of Congress to regulate commerce with foreign
nations and between the several States. In the case of Gibbons v. Ogden,' in 1824, the Court reversed a judgment of the
New York Court of Errors, upholding a law of that State
which was held to conflict with this power as exercised by
Congress. In that case, in one of Chief-Justice Marshall's
most celebrated opinions, the Court first expounded that brief
" commerce clause," which embodies one of the great compromises of the Constitution; setting forth with extraordinary
clearness and force not only its scope and meaning, but the
relations between the States and the general government, and
the rule by which the Constitution should be interpreted.
Upon that foundation rest hundreds of later judgments, successively determining the questions, ever new, presented by
the vast commercial development of the country, especially
of the commerce between the States, by methods of communication not yet imagined a hundred years ago. Fiftyone of these judgments declared void enactments in nineteen States, as regulations of commerce. Far down in that
list is the Pensacola Telegraph Case,2 citing and still further
developing the principles announced in Gibbons v. Ogden,
fifty-three years before. In this case was held exempt from
State control an instrumentality of commerce unknown even
to Science in the days of Marshall: but whose slender wires,
girdling the continent, now closely bind this ancient Empire
State and her Atlantic sisters to those new empires of the
Pacific coast, and those from whose mountain tops flashed out
but yesterday the splendor of the twin constellations newlyemblazoned upon the azure symbol of the Union which
embraces them all. "The powers of Congress," said the Court,
19 Wheaton, I.
SPensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. I, 9.
ï~~648 THE SUPREME COURT OF THE UNITED STATES.
in that case, "are not confined to the instrumentalities of
commerce known or in use when the Constitution was adopted,
but keep pace with the progress of the country." In the exercise of its powers, the Court has kept pace with both,-whether
in determining the great and novel questions of public welfare
and State control growing out of the enormous development of
the steam railway, another of those new Titans in the service
of modern civilization,' or in construing the laws which govern
the vast commerce upon our inland seas.
Reluctantly passing over many other important examples
under these heads, I cannot omit one which strikingly illustrates the development of the Constitution, and the deliberate
but bold and timely steps by which the extent of the judicial
power of the United States has been determined. That power
is declared by the Constitution to extend " to all cases of
admiralty and maritime jurisdiction." Chief Justice Marshall
held, in 1828,2 that this was a class of cases distinct from
those "arising under the Constitution and laws of the United
States;" that cases in admiralty do not, in fact, arise under
that Constitution or those laws, but are as old as navigation
itself; and that the law, admiralty and maritime, as it has
existed for ages, is applied by our courts to these cases as
they arise. But it was applied, at first, in accordance with
the rule adopted from the English courts, making tide-water
the test and limit of navigation, and consequently the boundary of admiralty jurisdiction. Such was the fact in England,
and practically the fact in the United States, when the Constitution was ratified. But the hardy pioneers of the great
SSee, among others, Munn v. Illinois, 94 U. S. I13; Chicago, &c., R. R. Co
v. Iowa, Ib., 155; Railroad Commission Cases, I16 U. S. 307; Wabash, &c., R
Co. v. Illinois, I I8 U. S. 557 -2 American Insurance Co. v. Canter, I Peters, 545-6.
ï~~ADDRESS OF MR. HITCHCOCK.
649
West were already swarming over its mountain barriers, conquering the wilderness, driving out the savage, and soon floating their peltry-laden flat-boats down its great rivers to the
Gulf. The energy of another generation converted those
national waterways into the busy avenues of a fast-developing
commerce, conducted by the resistless power of steam upon
thousands of miles of inland waters. From the vast territory
bordering upon these, new States were successively carved,
whose inharmonious laws, administered by separate tribunals,
began to fetter that commerce in its growth. For a time the
English rule was adhered to; but more and more the need
was felt for the uniform and settled rules of admiralty jurisdiction. In the case of The Genesee Chief,' in 1851, the question again arose; the grounds and reason of that rule were
re-examined by Chief Justice Taney, their insufficiency demonstrated in a masterly judgment, and the exclusive admiralty
jurisdiction of the United States over all inland waters in fact
navigable was established, and has ever since been maintained.2
But the Constitution was also ordained "to establish justice." Conspicuous among the evils it was designed to remedy
were those resulting from laws passed by various States interfering with contracts. These were dwelt upon by Hamilton in
The Federalist,3 as a cause not only of injury to individuals but
of hostility between the States; and long afterwards mentioned
by Madison4 among " the defects, the deformities, the diseases,
112 Howard, 443.
2In The Hine v. Trevor, 4 Wallace, 562, affirming The Genesee Chief, in 1866,
a very interesting account is given by MVIr. Justice Miller of the course of the
decisions on this subject. Both these cases were affirmed in The Eagle, 8 Wallace, 15, in 1868, since when the question has seldom arisen.
3 The Federalist, No. VII.
4 See Madison's Introduction, &c., E11iot's Debates, Vol. V, p. 1o.
ï~~650 THE SUPREME COURT OF THE UNITED STATES.
for which the Convention were to provide a remedy," and
described by Marshall as"a mischief so great, so alarming, as not only to impair commercial intercourse, and threaten the existence of credit, but to sap the morals of
the people and destroy the sanctity of private faith."
Hence the express restriction2-" No State shall pass any
law impairing the obligation of contracts." This provision the
Court has enforced in some of its most famous judgments.
Fifty-seven such decisions have been rendered, declaring void
enactments in twenty-two States: the earliest in Fletcher v.
Peck,3 in I8io; the most famous in 1819,-the Dartmouth College Case,4 in which the charter of an eleemosynary corporation was upheld as a contract inviolable by subsequent State
legislation. The doctrines of this case, in the words of Chief
Justice Waite, sixty years later-5
"have become so embedded in the jurisprudence of the United States
as to make them to all intents and purposes a part of the Constitution itself."
Many later judgments have enforced these doctrines; not
more by upholding against State legislation the sanctity of a
contract once clearly established, than by maintaining the right
and duty of each State, in harmony with the Constitution, to
control its internal affairs and to care for the health, the
morals, the education and the good order of its people.
Differing in subject but akin in spirit and principle, have
1 In Ogden v. Saunders, 12 Wheaton, 355.
* U. S. Constitution, Art. I, Sec. io.
a 6 Cranch, 87.
44 Wheaton, 518.
6 Stone v. Mississippi, 'o U.,S. 816.
ï~~ADDRESS OF MR. HITCHCOCK.
651
been the judgments, from Worcester v. Georgia,' in 1832, to
United Slates v. Kagama, in 1885, and The Choctaw Nation
v. The United States,2 in 1886, in which the Court has earnestly affirmed the power and duty of the United States to
protect the Indian tribes, helpless and dependent wards of the
Nation, against violence from local ill-feeling or oppression by
State power.
Widely differing from both as to subject and parties, but
still fulfilling that great purpose "to establish justice," have
been its judgments determining, as between States of the
Union, the location of their boundaries. Controversies of that
nature were pending between eleven States" when the Constitution was framed. Seven such suits, in which States of the
Union were plaintiff and defendant,4 have been determined by
the Supreme Court, aside from the settlement of such disputes
by compact between the States, assented to by Congress,' and
from their determination in suits between individuals.6 Upon
leave granted at its present term, the State of Virginia filed
in that Court, but the other day, its bill in equity against
the State of Tennessee, for a decree establishing the boundary
between them; the averments of which plainly disclose the
beneficent character of the jurisdiction invoked, and its alter16 Peters, 515. See also Fellows v. Blacksmith, 19 How., 366; The Kansas Indians, 5 Wall., 737; the New York Indians, Ib. 761.
2119 U. S., I, affirming I18 U. S., 375.
3 Per Baldwin, J., in Rhode Island v. Massachusetts, 12 Peters, 724. This learned
opinion discusses this interesting subject very fully from a historical point of view,
as well as the question of jurisdiction involved.
4 The cases referred to are, New Jersey v. New York, 3 Peters, 461, 5 Pet., 284,
6 Pet., 323; Rhode Island v. Massachusetts, 4 Howard, 591; Missouri v. Iowa, 7
How., 660; Florida v. Georgia, 17 How., 478; Alabama v. Georgia, 23 How., 505;
Virginia v. West Virginia, ii Wallace, 39; Missouri v. Kentucky, iI Wall. 395.
5 See Ex parte Devoe Manufacturing Co., 1o8 U. S, 401or, 410o.
* As in Handly v. Anthony, 5, Wheaton, 374; Jones v. Soulard, 24 Howard, 41.
ï~~652 THE SUPREME COURT OF THE UNITED STATES.
native of violence and bloodshed. Unexampled, indeed, in the
history of jurisprudence, are such suits, between such parties,
before such a tribunal.
Two of the three great compromises of the Constitution
were made with slavery; an institution then believed to be
slowly dying, and whose evils have seldom been depicted in
words more powerful or more prophetic than those of George
Mason, of Virginia, in the Federal Convention of 1787.' No
man could then foresee the industrial revolution destined to
give it new life,-the consequent increase of its power, its
ceaseless struggles for extension, the legislative compromises
successively made in vain, or the fierce political controversies
growing more and more dangerous through two generations.
The Kansas-Nebraska Act of 1854, repealing the so-called
Compromises of 1820 and 1850, re-lit the smoldering fires,
and hastened that conflict, long postponed, but some day inevitable under eternal laws. The decision by the Supreme
Court, in the Dred Scott Case,2 of questions incapable, under
such circumstances, of judicial settlement, added fuel to the
flame. At the dreadful cost of four years of civil war, that
supremacy of the nation was forever vindicated which the
Court, through Marshall, had demonstrated, and through
Taney had maintained. By their own appeal to arms the
1In the debate concerning the slave trade, August 22, 1787. "This inferna
traffic," said Mason, "originated in the avarice of British merchants.... Slavery
discourages arts and manufactures. The poor despise labor when performed by
slaves. They prevent the emigration of whites, who really enrich and strengthen
a country. They produce the most pernicious effect on manners. Every master
of slaves is born a petty tyrant. They bring the judgment of heaven on a country. As nations cannot be rewarded or punished in the next world they must be
in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities." Elliott's Debates, Vol. V, p. 458.
2 Dred Scott v. Sandfurd, i9 Howard, 393.
ï~~ADDRESS OF MR. HITCHCOCK.
653
advocates of secession and the defenders of slavery had
brought about the destruction of both.'
Peace was restored, and the people of the United States
inscribed in their fundamental law new guarantees of universal liberty, of citizenship, and of the equal protection of the
laws. New and grave problems arose,-not all yet solved,
and capable of solution only by a people whose reverence for
law shall peacefully secure to every citizen the rights which
neither force nor fraud can permanently deny.
With the new order and the new legislation, State and
National, which that demanded, new questions have arisen for
judicial determination. In many important judgments, including
some already mentioned, the Court has further expounded as
well the constitutional rights of the citizen as the enlarged
powers and duties of the general government and its relations
to the political communities whose people established, a hundred
years ago, "an indestructible Union composed of indestructible
States." 2 The limits of an occasion like this forbid even a
summary of those judgments: but their nature and importance
may be impressively illustrated by a glance at the subjects to
which some of them relate.
By means of that great writ of habeas corpus, the Court
has maintained, as against executive power acting through a
military commission, the right of the citizen to trial by jury.3
Re-affirming the cardinal principles of political liberty and personal security for which our forefathers contended against 'arbitrary power, it has prohibited4 unreasonable searches or
1 See the remarks of Bradley, J., in Knox v. Lee, 12 Wallace, 555.
STexas v. White, 7 Wallace, 725.
SEx parte Milligan, 4 Wallace, 2.
' Boyd v. United States, I16 U. S, 616, 625: citing Lord Camden's judgment in
Entick v. Carrington, i9 Howell's St. Tr., 1029.
ï~~654 THE SUPREME COURT OF THE UNITED STATES.
seizures, and the compulsory production by the citizen of evidence tending to criminate himself. It has annulled, as ex
post facto and as within the constitutional inhibition against
bills of attainder, new test oaths and penalties imposed by Congress and by the States. It has protected the citizen against
unlawful imprisonment under color of the legislative power of
Congress, while maintaining unimpaired its privileged freedom
of debate.2 As against Congress and the States alike, it has
forbidden the taxing power of either to impede the exercise
by the other of its appropriate functions of government.' It
has enforced, as against State laws and constitutions, the obligation of lawful contracts," while declaring utterly void those
intended to aid the Rebellion,' and refusing to recognize, as contracts, improvident grants by State legislatures of privileges inconsistent with the rightful authority of the State or its duty to
its people.6 It has applied the doctrines of that great judgment
in Gibbons v. Ogden to the new methods and more powerful instrumentalities of modern commerce, expounding and enforcing
l Ex parte Garland, 4 Wallace, 333; Cummings v. Missouri, Ib., 277; Pierce v.
Carskaddon, 16 Wallace, 234.
' Kilbourn v. Thompson, 103 U. S., I68.
a As to the power of Congress, see Buffington, Collector &c., v. Day, II Wall.,
I13; United States v. Balt. & O. R. R., 17 Wall., 322. As to the taxing power of
the States, see the learned and exhaustive opinion of Mr. Justice Gray in Van
Brocklin v. State of Tennessee, 117 U. S., 151, reviewing many prior decisions;
also McCulloch v. Maryland, 4 Wheaton, 316; Osborn v. Bank of United States,
9 Wh., 738; Weston v. Charleston, 2 Peters, 449; Bank of Commerce v. New York,
2 Black, 620; Van Allen v. The Assessors, 3 Wall., 563.
4Furman v. Nichol, 8 Wall., 44; Home of the Friendless v. Rowse, lb. 430;
Poindexter v. Greenhow, 114 U. S., 270; Royall v. Virginia, I16 U. S., 572; New
Orleans Gas Co. v. Louisiana Light Co., 115 U. S, 65o.
b Coppell v. Hall, 7 Wall., 542; Texas v. White, 7 Wall., 700; Hanauer v. Woodruff, 15 Wall., 439; Taylor v. Thomas, 22 Wall., 479; Radich v. Hutchins, 95
U. S., 21o.
aFertilizing Co. v. Hyde Park, 97 U. S., 659; Stone v. Mississippi, ioi U. S.,
814; Butchers' Union, &c. Co. v. Crescent City, &c. Co., III U. S., 746.
ï~~ADDRESS OF MR. HITCHCOCK. 655
the new legislation made necessary by its enormous growth:'
and has defined the powers which the States may lawfully exercise for the control and regulation of private property so
used, or a business so carried on, as that the public interest
is affected thereby.2 Interpreting the recent amendments to
the Constitution in the light of the wrongs they were de-.
signed to remedy,3 it has shielded citizen and alien alike, of
every race and color, against unequal laws and oppressive ordinances;4 but while upholding the power of Congress to enforce them by "corrective legislation," has denied its right to
supersede the legislatures of the States.6 Strongly asserting
the right of the United States, by means both of the legislative and of the judicial power, to guard the purity of national elections,6 and to protect the officers and agents of the
nation in the discharge of every duty, and steadily upholding
the supremacy of the general government, within its sphere,
over all persons and territory and things throughout the Union,7
it has not less firmly maintained the power and duty of each
'See the following among other cases: Chy Lung v. Freeman, 92 U. S., 275;
Telegraph Co. v. Texas, io5 U. S., 460; People v. Compagnie Generale, o107 U. S,
59; Walling v. Michigan, Ix6 U. S., 446; Pickard v. Pullman Southern Car Co.,
117 U. S., 31; Wabash &c. R. R. Co. v. Illinois, ni8 U. S., 557; Ratterman v.
Western Union Telegraph Co., 127 U. S., 41; Leloup v. Port of Mobile, lb.,
640; Asher v. Texas, 128 U. S., 129.
2 Munn v. Illinois, 94 U. S. 11 I3; Chicago, &c, R. Co. v. Iowa, Ib., 155; Stone
v. Farmers' Loan & Trust Co. ("Railroad Commission Cases"), I16 U. S. 307-356.
s Slaughter-house Cases, 16 Wall, 36; Strauder v. West Virginia, ioo U. S. 303;
Civil Rights Cases, io9 U. S. 3.
'Strauder v. West Virginia, 10oo U. S. 303; Ex parte Virginia, ioo U. S. 339;
Neal v. Delaware, 1o3 U. S. 370; Vick Wo v. Hopkins, i 8 U. S. 356.
'United States v. Reese, 92 U. S. 214; United States v. Cruikshank, 92 U. S.
542; Civil Rights Cases, 1o9 U. S. 3; 13.
' Ex pare Siebold, ioo U. S. 37!; Ex parte Clarke, 'oo U. S. 399; Ex parte
Yarbrough, ho U. S. 65i.
7Ex par/e Siebold, ioo U. S. 386, 393-4.
ï~~656 THE SUPREME COURT OF THE UNITED STATES.
State, within its proper sphere, to legislate for the welfare of
its people. In its own terse phrase, the Court "has held with
a steady and an even hand the balance between Federal and
State power."'
From this imperfect sketch may be gathered how vast are
the powers in the exercise of which the Court has expounded
and has enforced those principles of constitutional liberty upon
which securely rest the political and personal rights of the
people of the United States, whether regarded as individuals,
or as citizens of the United States, or as citizens of the several States. To no other tribunal have such powers ever been
confided; for the political system of which it forms a part is
without example in the past. But when the history of the
Court shall be written, to these unique functions must be
added those which it has also constantly fulfilled in determining the important and far more numerous questions of private
right and duty which have come before it. Exercising in the
last resort that jurisdiction, conferred by the Constitution upon
the courts of the Union,2 which depends solely upon the character of the parties, whatever may be the subject of controversy, and that which-as in admiralty, bankrupt and patent
causes-relates to controversies of exclusively federal cognizance, there is no department of jurisprudence which the intellectual power, the learning, the dignity and the purity of
Marshall and Story and their associates and successors have
not enriched and adorned.
- But while the judicial powers thus exercised were granted
and are defined in the Constitution, the true power of the
Court has resided and must ever dwell in the sincere respect
and unbought confidence of the people of the United States.
' Slaughter-house Cases, i6 Wall, 82.
2 cohens v. Virginia, 6 Wheaton, 378.
ï~~V r j
ADDRESS OF MR. HITCHCOCK. 657
"The people," said the great Chief Justice, in perhaps the
greatest of his judgments.t"The people made the Constitution, and the people can unmake it.
It is the creature of their will, and lives only by their will. But this
supreme and irresistible power to make and to unmake resides only in
the whole body of the people, not in any subdivision of them."
However exalted, therefore, the admiration justly due to
the unique character and importance of its labors and to the
extent and value of its contributions to jurisprudence, the
highest eulogy of the Court is found in the respect and confidence with which its judgments have been received and
obeyed. Not always unanimous, not in every case compelling
immediate or universal assent to the reasons assigned for them,
and on more than one important occasion reconsidered by the
Court itself, its decisions have nevertheless been accepted as
the final and authoritative exposition of the fundamental law,
by a people conscious that with themselves still rest the form
and destiny of their free institutions, and that upon their own
reverence for the sanctions of law the safety and endurance of
those institutions depend.
The century now ended had but half elapsed when De
Tocqueville wrote: 2
"A more imposing judicial power was never constituted by any
people. The Supreme Court is placed at the head of all known tribunals, both by the nature of its rights, and the class of justiciable parties
which it controls."
Reviewing, at the century's close, the exercise of those powers, with what patriotic pride, with what reverent thankfulness
to the Supreme Ruler of nations, may we not justly regard, in
' Cohens v. Virginia, 6 Wheaton, 389.
* Democracy in America (Reeves' Trans., 1875), Vol. I, p. x48.
42
ï~~658 THE SUPREMiE COURT OF THE UNITED S lA TES.
either view of its jurisdiction, this most august of human tribunals! In one aspect we contemplate the vast conflicting interests, of public and private concern, whose adjustment has been
demanded by the unparalleled growth and development of a
great people, and the still graver controversies among powerful States, such as elsewhere drain the life blood and make
desolate the homes of nations; alike peacefully determined by
those judgments, pronounced by illustrious men, the records
of which are more glorious than the blazonry of battle flags,
since upon them are inscribed the bloodless victories of peace,
nobler than all the triumphs of war. In the other, the imagination pictures that impressive spectacle, the unbroken procession, through all these years, of the suitors who have
come before its bar,-suitors, not suppliants, of every class
and race and rank, the citizen, the friendless alien and the
representative of the proudest State, for whose equal protection that sublime purpose, "to establish justice," is declared.
Such are the judicial powers in whose pure and faithful
exercise is reflected and fulfilled,-so far as mortal man may
fulfil the perfect ordinances of Heaven,-that divine and eternal law "whose seat is the bosom of God, whose voice is the
harmony of the world."
Mr. Semmes, of Louisiana, was then introduced.
ADDRESS OF THOMAS J. SEMMES, ESQ.
" THE PERSONAI, CHARACTERISTICS OF THE CHIEP JUSTICES."
Mr. President:
During the century of its existence seven persons, exclusive of the present incumbent, filled the office of Chief Justice
of the Supreme Court of the United States--Jay, Rutledge,
Ellsworth, Marshall, Taney, Chase and Waite.
Most of these were appointed in the prime of life, Taney,
ï~~ADDRESS OF MR. SEMMES. 659
at 59, was the oldest; Jay resigned when he was but 50
years of age.
Marshall and Taney presided in the Court for sixty-three
years-Marshall from I8oi to July, 1835, and Taney from
1836 to 1864. Marshall was appointed by John Adams about
a month before the inauguration of President Jefferson; it
was said that his appointment was due to his defense in
Congress of the Administration in the case of Jonathan Robbins, who claimed to be an American citizen, and who had
been delivered up, by order of the President, to the British
Government as a deserter, and was hanged at the yard-arm
of a British man-of-war.
Taney was appointed by Andrew Jackson shortly before
the accession of Mr. Van Buren, and it is said he was appointed because of his aid to Gen. Jackson on the bank
question, and especially as a reward for the act of removing
the public deposits.
Marshall was a legacy left by the defeated Federalists
to the victorious Republicans of that day; Taney, with the
address that he had prepared for the President, was a legacy
left by Gen. Jackson to the people of the United States.
Taney had been nominated by Gen. Jackson as an Associate Justice of the Supreme Court, while Marshall was Chief
Justice; the Senate, under the domination of party spirit,
indefinitely postponed the nomination, although we know
from a letter addressed to Benjamin Watkins Leigh, then a
Senator from Virginia, that Marshall desired the appointment
of Taney to be confirmed.
These two men were born, Marshall on one side of the
Potomac, in the year 1755, in Fauquier County, Va., and
Taney on the other side of the Potomac, in the year 1777,
in Calvert County, Md. Marshall was a member of the
ï~~660 THE SUPREME COURT OF THE UNITED STATES.
Protestant Episcopal Church. Taney was a devout Roman
Catholic.
Marshall was assailed by the Republicans of his day
because of decisions in the case of Marbury v. Madison and
on the trial of Aaron Burr. Taney met the same fate from
the Republicans of his day, because of his decisions in the
case of Dred Scott and in the Merryman habeas corpus case.
The criticism of Mr. Jefferson on the opinion of Marshall
in the case of Marbury v. Madison is not altogether unfounded. The Chief Justice having reached the conclusion
that the Supreme Court had no power to issue a writ of
mandamus to the Secretary of State, it being an exercise of
original jurisdiction not warranted by the Constitution, could
have, and perhaps should have, abstained from entering upon
the discussion of other questions not necessary to be decided;
it is this discussion which Mr. Jefferson sarcastically called
an obiter dissertation.
However that may be, Marshall vindicated the opinion
entertained of him by the Federalists of that day, when he
held that an act of Congress repugnant to the Constitution
is not law, and that it is the province and duty of the Judicial Department to say what the law is, and that the Constitution is to be considered in courts as the paramount law,
and that any other principle would subvert the foundation of
all written constitutions, and would give to the legislature a
practical and real omnipotence, while the Constitution professed to restrict their powers within narrow limits. Before
this decision was made, there had been hesitancy and halting
among judges as to the power of the Court to declare an act
of Congress void, because of its repugnancy to the Constitution. This decision invested the Supreme Court with, or
rather secured to it, a power which no court ever before pos
ï~~ADDRESS OF MR. SEMMES.
661
sessed, and the possession of such power has elicited from a
distinguished foreigner the remark, that the Court is not only
a most interesting but a virtually unique creation of the
founders of the Constitution. Ever since the decision rendered in the case of Marbury v. Madison, except during a
paroxysm of passion, the eyes of the nation have been fixed
on the Court as the guardian of the national Constitution and
the harmonious regulator of interstate relations. The Romans
regarded their Praetor "as the living voice of the civil law; "
the Supreme Court is in fact the living voice of the Constitution; that is to say, it voices the will of the people as expressed in the Constitution.
The Court is the conscience of the people, who, to restrain themselves from hasty and unjust action, have placed
their representatives under the restrictions of paramount law.
It is the spirit and tone of the people in their best moments.
It is the guarantee of the minority against the vehement impulses of the majority.
The Court also exercises a veto power on State action
more potent than that proposed in the convention, although
much less distasteful.
The veto power of the Supreme Court is constantly exerted, not, it is true, to annul State laws, but to declare in
more euphemistic language that a State statute is no law,
because it is repugnant to the Constitution.
Jefferson hated Marshall, who reciprocated his dislike.
During the trial of Burr, Marshall did not hesitate to
issue a subpoena duces tecum to the President, requiring him
to appear in court and produce a certain letter of General
Wilkinson.
The determination of Marshall to decide Burr's case according to law, unawed by public clamor or by the denunci
ï~~662 THE SUPREME COURT OF THE UNITED STATES.
ations of those in power, is manifested in that part of his
opinion where he says: "That this Court does not usurp
power is most true. That this Court does not shirk from its
duty is no less true. No man, might he let the bitter cup
pass from him without reproach, would drain it to the bottom. But if he has no choice in the case, if there is no
alternative presented to him but a dereliction of duty or the
opprobrium of those who are denominated 'the world,' he
merits the contempt as well as the indignation of his country who can hesitate which to embrace."
Marshall's sturdy conduct as a member of the commission to France in 1797 gave origin to the celebrated dinner
toast, "Millions for defense, but not a cent for tribute."
Pickering, whose pen was usually dipped in gall, said:
"Of the three envoys to France, the conduct of Marshall has
been entirely satisfactory, and ought to be marked by the
most decided approbation of the public."
And Patrick Henry, his political opponent, alluding to
the bearing of Marshall, as one of the envoys to France,
says: "His temper and disposition were always pleasant, his
talents and integrity unquestioned. I love him because he
felt and acted as a republican, as an American."
Chief Justice Marshall, when appointed, had reached the
age of 45. William Wirt thus describes him:
The Chief Justice of the United States is in his person tall, meagre,
emaciated; his muscles so relaxed as not only to disqualify him apparently for any vigorous exertion of body, but to destroy everything like
harmony in his whole appearance and demeanor, dress, attitude, gesture;
sitting, standing or walking he is as far removed from the idolized
graces of Lord Chesterfield as any other gentleman on earth. His head
and face are small in proportion to his height; his complexion swarthy;
the muscles of his face being relaxed, make him appear to be fifty years
ï~~ADDRESS OF MR. SEMMES.
663
of age-nor can he be much younger. His countenance has a faithful
expression of good humor and hilarity, while his black eyes, that unerring index, possess an irradiating spirit, which proclaims the imperial
powers of the mind that sits enthroned within.
In this man what a legacy the dying Federalists bequeathed to the country! When Wolcott heard of the appointment, he said that, although Marshall was a man of
virtue and distinguished talents, "he will think much of the
State of Virginia, and is too much disposed to govern the
world according to rules of logic; he will read and expound
the Constitution as if it were a penal statute, and will sometimes be embarrassed with doubts of which his friends will
not see the importance."
What has been the result? To use the language of Mr.
Bryce: " It is hardly an exaggeration to say that the American Constitution as it now stands, with the mass of fringing
decisions that explain it, is a far more complete and finished
instrument than it was when it came fire new from the hands
of the convention. It is not merely their work, but the work
of the Judges, and, most of all, of one man-the great Chief
Justice Marshall."
In 1775, when rumors were in circulation of the occurrences near Boston, Marshall, not then twenty years of age,
marched to the muster field of the militia, twenty miles distant, wearing a plain blue hunting shirt and trousers of the
same material, fringed with white, and a round black hat
mounted with the buck's tail for a cockade. Elected a lieutenant, he, with his men, joined Patrick Henry in his march
on Williamsburg.
With promoted rank, he was personally engaged in the
battles of Iron Hill, Brandywine, Germantown, and Monmouth,
ï~~664 THE SUPREME COURT OF THE UNITED STA TES.
and with Washington's exhausted troops he went into winter
quarters at Valley Forge, where, says Slaughter,
He was the best-tempered man I ever knew. During his sufferings,
nothing discouraged, nothing disturbed him. If he had only bread to
eat, it was just as well; if only meat, it made no difference. If any of
the officers murmured at their deprivations, he would shame them by
good-natured raillery, or encourage them by his own exuberance of spirits. He was an excellent companion, and idolized by the soldiers and his
brother officers, whose gloomy hours were enlivened by his inexhaustible
fund of anecdote.
He was with Wayne at the assault on Stony Point, and
subsequently covered Major Lee's retreat after his surprise of
the enemy at Powle's Hook, July 19, 1779. His military
career terminated in 1781, having in the interval served under
Baron Steuben, and aided in defeating Arnold's invasion of
Virginia. In the year 1780, while waiting in Williamsburg
for the organization of a new corps of troops, he studied law
under Chancellor Wythe.
It was during the summer after the war that he walked
to Philadelphia in order to be inoculated for the smallpox, and
on his arrival he was refused admission to one of the hotels
because of his shabby appearance, long beard, and worn-out
garments. Some years afterward his rustic appearance lost
him a fee. A gentleman who wished to retain a lawyer met
Marshall one morning strolling through the streets of Richmond, attired in a plain linen roundabout and shorts, with hat
under his arm, from which he was eating cherries, and although
Marshall had been recommended to him, the careless, languid
air of the young lawyer created such an unfavorable impression that the gentleman did not engage him. He was always
easy, frank, friendly, and cordial in his manners and social
in his habits. He was never very studious, and, although
ï~~ADDRESS OF MR. SEMMES.
665
temperate in his habits, was very fond of his bottle of Madeira
at dinner. Without possessing beauty of style, melody of
voice, grace of person, or charm of manner, he became a distinguished advocate and achieved rapid and extraordinary success at the bar.
Yet Mr. Wirt says: " This extraordinary man, without
the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves
to be considered as one of the most eloquent men in the
world, if eloquence may be said to consist in the power of
seizing the attention with irresistible force, and never permitting it to elude the grasp until the hearer has received
the conviction which the speaker intends. His voice is dry
and hard; his attitude, in his most effective orations, was often
extremely awkward; while all his gestures proceeded from his
right arm and consisted merely in a perpendicular swing of
it, from about the elevation of his head to the bar, behind
which he was accustomed to stand. As to fancy, if she holds
a seat in his mind at all, his gigantic genius tramples with
disdain on all her flower-decked plats and blooming parterres.
How then, you will ask, how is it possible that such a man
can hold the attention of an audience enchained through a
speech of even ordinary length? I will tell you. He possesses one original and almost supernatural faculty: the faculty of developing a subject by a single glance of his mind,
and detecting at once, the very point on which every controversy depends. No matter what the question, though ten times
more knotty than ' the gnarled oak,' the lightning of heaven
is not more rapid or more resistless than his astonishing penetration. Nor does the exercise of it seem to cost him an
effort. On the contrary, it is as easy as vision. I am persuaded that his eyes do not fly over a landscape and take its
ï~~666 THE SUPREME COURT OF THE UNITED STA TES.
various objects with more promptitude and facility, than his
mind embraces and analyzes the most complex subject."
Marshall married Miss Ambler, one of the colonial belles
of Williamsburg, whom he courted while he was a young
soldier. This union endured more than forty years. She died
Dec. 25, 1831. The tender and assiduous attention he paid to
her is one of the most interesting and striking features of his
domestic life. Bishop Meade says: "She was nervous in the
extreme. The least noise was sometimes agony to her whole
frame, and his perpetual endeavor was to keep the house and
yard and outhouses from slightest cause of distressing her,
walking himself at times about the house and yard without
shoes."
Judge Story said "She must have been a very extraordinary woman, and I think he is the most extraordinary man I
ever saw for the depth and tenderness of his feelings."
I cannot forbear to quote in full a tribute to her memory,
written by himself, Dec. 25, 1832, and found among his papers.
This day of joy and festivity to the whole Christian world is, to my
sad heart, the anniversary of the keenest affliction which humanity can
sustain. While all around is gladness, my mind dwells on the silent
tomb and cherishes the remembrance of the beloved object which it
contains.
On the 25th of December, 1831, it was the will of Heaven to take to
itself the companion who has sweetened the choicest part of my life,
has rendered toil a pleasure, has partaken of all my feelings, and was
enthroned in the inmost recess of my heart. Never can I cease to feel
the loss and to deplore it. Grief for her is too sacred ever to be profaned on this day, which shall be, during my existence, marked by a
recollection of her virtues.
On the 3d of January, 1783, I was united by the holiest bonds to the
woman I adored. From the moment of our union to that of our separation, I never ceased to thank Heaven for this, its best gift. Not a mo
ï~~ADDRESS OF MR. SEMMES.
667
ment passed in which I did not consider her as a blessing from which
the chief happiness of my life was derived. This never-dying sentiment,
originating in love, was cherished by a long and close observation of as
amiable and estimable qualities as ever adorned the female bosom. To a
person which in youth was very attractive, to manners uncommonly
pleasing, she added a fine understanding, and the sweetest temper which
can accompany a just and modest sense of what was due to herself. She
was educated with a profound reverence for religion, which she preserved
to her last moments. This sentiment, among her earliest and deepest
impressions, gave a coloring to her whole life. Hers was the religion
taught by the Saviour of man. She was a firm believer in the faith
inculcated by the church (Episcopal) in which she was bred.
I have lost her, and with her have lost the solace of my life. Yet
she remains still the companion of my retired hours, still occupies my
inmost bosom. When alone and unemployed, my mind still recurs to
her. More than a thousand times since the 25th of December, x831,
have I repeated to myself the beautiful lines written by General Burgoyne, under a similar affliction, substituting "Mary " for "Anna:"
"Encompassed in an angel's frame
An angel's virtues lay;
Too soon did heaven assert its claim
And take its own away.
My Mary's worth, my Mary's charms,
Can never more return.
What now shall fill these widowed arms?
Ah! me, my Mary's urn.
Ah! me, ah! me, my Mary's urn."
One of his descendants, a great-grandchild, writes me that
the family knew well she would learn from others her grandfather was a great man; "they told me he was only a good
one. My father spent many Christmas holidays with his
grandparents. His grandmother was an invalid, and intolerant of the slightest noise, but his grandfather was ever ready
to be his playfellow and companion. Every morning and evening he would take him by the hand and bid him be very quiet;
ï~~668 THE SUPREME COURT OF THE UNITED STATES.
then on tiptoe, with finger on his lips, he would take him to
her room to say good morning and good night. He was a devoted lover every day of her life. He was an humble but
devoted Christian. And he said he never failed to nightly say
the little prayer, 'Now I lay me down to sleep,' which he
learned at his mother's knee as soon as he could lisp."
With Marshall, the Chief Justices who had participated
in the Revolution ended. Taney, though born during the
Revolution, was twenty-two when Washington died. At fiftynine he was Chief Justice; he died in the eighty-eighth year
of his age, in Washington.
Taney was a man of iron will and undaunted courage,
braved public opinion boldly when he thought it his duty,
and, though naturally vehement and passionate, he used no
harsh or vindictive language toward his traducers, and his
temper was kept under perfect control.
Even when engaged in politics, the harshest expressions
ever used by him were at a public meeting called by his
political friends to greet him after his nomination as Secretary of the Treasury had been rejected by the Senate. It
was the first time in the history of the government that the
Senate had refused to confirm a Cabinet Minister nominated
by the President.
Mr. Webster, in a speech at a public dinner, had alluded
to Taney as "the pliant instrument of the President, ready
to do his bidding;" for Taney, as Secretary of the Treasury,
had ordered the removal of the public deposits from the
United States Bank. At the meeting to which I refer Taney
said: "Neither my principles nor my habits lead me to bandy
words of reproach with Mr. Webster or any one else. But it
is well known that he has found the bank a profitable client,
and I submit to the public whether the facts I have stated
ï~~ADDRESS OF MR. SEMMES. 669
do not furnish ground for believing that he has become its
'pliant instrument,' and is prepared on all occasions to do
its bidding whenever and wherever it may choose to require
him. In the situation in which he has placed himself before
the public, it would far better become him to vindicate himself from imputations to which he stands justly liable, than
to assail others."
He had advised General Jackson in 1832 to veto the bill
renewing the charter of the United States Bank, and he aided
in preparing the veto message; in fact, he was the only
member of the Cabinet who favored the veto.
The correspondence between General Jackson and Taney
in August, 1833, has convinced every one that the removal
of the public deposits from the United States Bank was not
the act of the pliant instrument of the President, but of a
Cabinet Minister in execution of a policy which he had urged
upon the President.
The opinion in the Dred Scott Case elicited storms of
disapprobation from heated partisans; the political leaders in
paroxysms of rage traduced the Court and the Chief Justice,
and for the first time in the history of the nation a political
party, through its platform of principles and the President
elected by them, inculcated the doctrine "that if the policy
of the government upon vital questions affecting the whole
people is to be irrevocably fixed by decisions of the Supreme
Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased
to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal."
The arbitrament of the Supreme Court being rejected,
nothing was left but the sword. The judgment delivered in
ï~~670 THE SUPR E ME COURT OF THE UNITED STA TES.
the Dred Scott Case has been tried, as in the olden times,
by an appeal to the wager of battle, and in that way it has
been reversed.
When war came, Taney was not deterred by clamor, nor
by flaming swords, nor by the insolence of power, nor by
threats, from the performance of his official duty.
A distinguished gentleman of the Baltimore bar, who
witnessed the trial of the Merryman habeas corpus case in
Baltimore, thus described the scene to me:
I do not think that there ever was a more striking illustration of
judicial dignity and self-restraint than what occurred at the hearing of
the celebrated habeas corpus case of John Merryman, in 1861. It would
not be easy to conceive a more remarkable manifestation of the control
which one old and infirm man could exercise over a large and highly
excited crowd by the mere force of his own personality and his hold on
the public respect and affection. Long before the hour of the hearing
the streets leading to the court-house were filled with a dense mass of
people. It was not long after the 19th of April, i861, and the popular
mind had lost but little of the excitement of that occasion. The crowd,
nevertheless, was comparatively quiet, but the suppression of feeling only
added to its intensity. It would have needed but a word to start a popular movement, which would not have been checked, in any way, by the
knowledge that a very considerable body of regular troops was at Fort
McHenry. As the Chief Justice came down for the meeting of the Court
he was leaning upon the arm of his young grandson. As he approached
the crowd, half a square from the court room, every man lifted his hat,
and a pathway was opened through the dense mass of people for him and
his companion to pass. As the Chief Justice walked through, the whole
crowd uncovered themselves, and they continued uncovered until he entered the court-house. The immediate approach to the entrance was so
closely packed that the Chief Justice was compelled to pass down the
side of the court-house to a private entrance, which gave him access to
the bench from the rear of the building. The court room itself was so
much crowded that I think it would have been difficult to pack a half
dozen more men in it.
ï~~ADDRESS OF MR. SEMMES.
671
When the Chief Justice came in the most absolute silence prevailed.
He asked the clerk, in his usual quiet and low tones, whether any return
had been made to the writ. The officer whom General Cadwalader had
made the bearer of his return proceeded to read it. His manner was not
calculated to diminish the feeling of indignation and resentment, which
was caused by the avowed determination of the General to disobey the
mandate of the Court and disregard the rights of Mr. Merryman as a
citizen. An intense but subdued excitement became visible throughout
the court room, though the dead silence continued. The same excitement was soon communicated to the people outside. Nothing but the
manner and bearing of the Chief Justice, and the veneration in which he
was held, prevented an outbreak on the spot, of which General Cadwalader's messenger would probably have been the victim.
So great, however, was the silent influence of the Chief Justice, and
the respect for his person and authority, that no demonstration of any
kind was made, and the city was thus saved from a catastrophe which,
in the then state of the public mind, could not have been otherwise than
very disastrous, both in itself and its consequences. It was very difficult
to conceive, without witnessing it, that, in a case involving the liberty
of the citizen, and the legal and constitutional guarantees that secure it,
any judicial officer, impressed with the responsibility of the occasion, and
indignant, as he must have been, at the defiance of his mandate and the
asserted supremacy of the Federal Executive over the Constitution and
laws, could have so dealt with the matter, that the most careful observer
could trace no departure, in the slightest degree, from the tranquil dignity which characterized the court in the daily exercise of its ordinary
jurisdiction.
Taney was not ambitious of political office; political life
did not suit his taste, because he was a thoroughly trained
lawyer and devoted to his profession. He was a classical
scholar, studied English with uncommon care; his style was
simple and severe; in perspicuity and finish of language he
was unsurpassed. He was a constant student; his studies embracing literature ancient and modern; his memory was surprising and his mind so logical, that its power of subtle
ï~~672 THE SUPREME COURT OF THE UNITED STATES.
analysis, says Mr. Justice Curtis, exceeded that of any man
he ever knew. He was a man of high breeding, and of extraordinary delicacy and courtesy; though vehement by nature,
he was gentle in manners, generous to his opponents, and Mr.
Justice Curtis says "as absolutely free from vanity or selfconceit as any man he ever knew."
The touch of romance in his nature was exhibited by his
fondness for flowers, and his beautiful devotion to the memory
of his mother, by whose side he wished to be buried.
Though shy and reserved in his manners, he was most attractive at home, being to a large extent the companion of his
daughters, for he had no sons. He married Miss Key, the
sister of the author of the "Star Spangled Banner."
His love for her is portrayed in the following letter, dated
January 7, 1852, at Washington:
I can not, my dearest wife, suffer the seventh of January to pass
without renewing to you the pledges of love which I made to you on
the seventh of January, forty-six years ago. And, although I am sensible that in that long period I have done many things which I ought
not to have done, and have left undone many things that I ought to
have done, yet in constant affection to you I have never wavered, never
being insensible how much I owe to you, and now pledge to you again
a love as true and sincere as that I offered on the seventh of January,
x8o6.
She died of yellow fever in 1855 at Old Point Comfort.
Her death was a sore affliction to him; in a letter addressed
to Mr. Justice Curtis, November 3, 1855, he says: "The chastisement with which it has pleased God to visit me has told
sensibly on a body already worn by age as well as upon the
mind; I shall meet you with a broken heart and with a broken
spirit."
Religion was prominent in his life, he was a regular corn
ï~~ADDRESS OF MR. SEMMES.
678
municant in the Catholic Church; in a letter to his kinsman,
he says: "Most thankful am I that the reading, reflection,
studies, and experience of a long life have strengthened and
confirmed my faith in the Catholic Church, which has never
ceased to teach her children how they should live and how
they should die."
He prized official integrity to a degree which is hardly
appreciated by those not so delicate as he was; hence he refused, while Secretary of the Treasury, to accept a box of
cigars as a present from the Collector of the Port of New York;
he declined the dedication to him of Mr. Seward's speech on
the French Spoliation Claims, lest its acceptance might be
construed into interference in a measure pending before Congress. He never spoke ill of any man; he espoused the cause
of the oppressed; and was charitable to the poor; he liberated
the slaves that came to him as an inheritance, aided them in
their employments, and took care of them when in want.
He was tall in stature, pale, thin, looked infirm and ready
to drop into the grave. Near-sightedness gave him a sort of
immobility of expression. He was affected with a morbid sensibility caused by delicate health from early youth; toward the
end of his life he looked like a disembodied spirit, for his
mind was not affected by his age or the infirmities of his body.
He died October I2, 1864, in the eighty-eighth year of his
age, and was buried by the side of his mother. He died in
Washington, poor and neglected, his life went out like a candle
expiring in its socket in a deserted chamber.
The lines of Horace, attached by him to his autograph
sent on June 24, 1864, to Mrs. Alice Key Pendleton, are
characteristic of the man:
Justum et tenacem propositi virum,
Non civium ardor prava jubentium,
43
ï~~674 THE SUPREME COURT OF THE UNITED STATES.
Non vultus instantis tyranni,
Mente quatit solida.
The judicial life of Jay, Rutledge, and Ellsworth was so
short that the interest attaching to them as Chief Justices, is
diminished by the admiration they elicit as leaders of the
revolution, and as statesmen.
All three were appointed by Washington. The judiciary
bill was approved September 24, I789. Jay was nominated
and confirmed two days afterward. So great was the opinion
entertained of his character and abilities that Washington gave
him a choice of the offices under the Government. He preferred the office of Chief Justice as more in accord with his
taste, his education and his habits. Before this he had been
Minister to Spain, and President of Congress, and Secretary
of State, and had negotiated the treaty of peace in 1782-83;
he had also filled the office of Chief Justice of the State of
New York; and, as a member of the New York Convention,
had taken a leading part in framing the Constitution of that
State in 1777.
It was he who prepared the address of the Continental
Congress to the people of Great Britain, a vigorous, patriotic
paper, which fixed the eyes of the people upon him.
His skill in negotiating the treaty of peace is universally
recognized. He induced Franklin to concur with him and
John Adams, in disregarding the instructions of Congress, to
act in concert with our ally, the King of France, because he
believed Vergennes, the French Minister, was playing a double
part, injurious to the interests of the United States. At the
time the propriety of his conduct was questioned, but subsequent disclosures of contemporary correspondence have vindicated his sagacity. While holding the office of Chief Justice
he was appointed Minister to Great Britain, and negotiated
ï~~ADDRESS OF MR. SEMMES.
675
the celebrated treaty, which, though approved by Washington,
was so much condemned by the public. On his return from
England, having resigned the office of Chief Justice, he was
elected Governor of New York, which office he filled for two
terms. During his second term the political tide was turning
against the Federalist party, to which he belonged.
The Republicans in the New York Legislature introduced
a bill to divide the State into election districts, and provide
for the choice of Presidential Electors by the people in the
respective districts; this was defeated by the Federalist majority on Constitutional grounds. After the adjournment of the
Legislature, it was thought that the district system would
best promote the political interests of the Federal party.
Hamilton, in a letter dated May 7, 18oo, proposed to Jay
that he should reconvene the Legislature for the purpose of
having passed the very bill which they had just defeated.
Hamilton urged Jay not to be over-scrupulous, and that to
the extraordinary nature of the crisis scruples of delicacy and
propriety ought to give way. This letter was found among
Jay's papers thus endorsed: "Proposing a measure for party
purposes which I do not think it becomes me to adopt."
Washington placed the untried Constitution under the
guardianship of a Chief Justice, who was not only a lawyer,
but a statesman and a diplomatist, and especially a man
familiar with the practical difficulties encountered in the administration of government during the revolution, and under
the regime of the Confederation.
Although the decision rendered by Jay in Chisholm v.
Georgia was reversed by the Constitutional amendment adopted
in 1798, yet the tone of the decision, and the logical deduction from its principles, were significant of the change in the
structure of the Government erected by the Constitution. The
ï~~676 THE SUPREME COURT OF THE UNITED STATES.
country was startled by the claim that the people of the United
States, as the sovereign people of a nation, had established a
Constitution, by which it was their wish that the States should
be bound, and to which the State Constitutions should be
made to conform; that the sovereignty of the nation is in
the people of the nation, and the residuary sovereignty of
each State in the people of each State.
This was really the only important case decided by the
Court while Jay was Chief Justice. He sat on the bench
robed in the traditionary gown of the English judges, but he
discarded the wig to wear the hair off the forehead, tied behind into a cue. He was a little less than six feet in height,
well formed but thin, his complexion without color, his eyes
blue and penetrating, his nose aquiline, and his chin pointed.
His dress was black; his manner gentle and unassuming, but
somewhat chilled by the dignity of the statesman. His style
of speaking was quiet and limpid without gesture. He was
philanthropic, and desired the extinction of slavery in accordance with a sentiment then prevalent even in the South, whose
leading men at that time, especially those of Virginia, as Mr.
Webster tells us, "felt and acknowledged that it was a moral
and political evil; that it weakened the arm of the free man
and kept back the progress and success of free labor."
Jay married in 1774 Miss Livingston, who, it is said, was
very beautiful. She was the life of fashionable society in
Philadelphia while he was secretary of foreign affairs under
the Confederacy. Several children were the fruit of this marriage. His wife having suffered from delicate health for several years, died shortly after his retirement from public life.
Jay was by nature of a quick temper, but he kept it
under control; he was straightforward and sincere; he had
strong family and local attachments; he had an elevated sense
ï~~ADDRESS OF MR. SEMMES.
677
of justice; was tenacious in his friendships and in his enmities; his mind was vigorous, exact, and logical; penetration
was its characteristic; but he was not a full or learned man,
nor did imagination enlarge the compass of his thought or
impart grace and flexibility to his mind. The Bible was his
constant study, and his religion was a part of his being and
displayed itself in the uniform tenor of his life. But the religion which descended to him from his ancestors came tinctured with the spirit of intolerance, which Buckle tells us
characterized the Huguenots wherever they had the power in
France, the result, as he says, of that odium theologicum
which is one of the characteristics of civil government when
controlled by ecclesiastical influence. Mr. Jay proposed in the
New York convention to exclude Roman Catholics from the
privileges of citizenship, but fortunately the proposition was
defeated by the spirit of the Revolution, which was stronger
than the expiring fanaticism of the age.
When Jay resigned in 1795, Washington at once appointed John Rutledge, of South Carolina, to succeed him.
He held the office but six months, having been rejected by
the Senate on account of his violent opposition to Jay's treaty
with Great Britain, and also, it is believed, on account of
mental infirmity, caused by exposure in the swamps of South
Carolina during the Revolutionary War.
He was a very interesting and remarkable man. His intellectual abilities were great, and his character earnest and
resolute. His father was an Irish physician who settled in
Charleston in 1734. He soon married a young lady of fortune, who was a mother at fifteen and a widow at twenty-six.
John was born in 1739, and was the oldest of seven children.
Having been fairly educated in the classics, he commenced
the study of law at seventeen; after two years he went to
ï~~678 THE SUPREME COURT OF THE UNITED STATES.
London and entered as a student in the Temple. Mansfield
was presiding then in the King's Bench; Henley, afterward
Lord Northington, was Lord keeper; Pratt, afterward Lord
Chancellor and Earl of Camden, was Attorney-General, and
Burke was just rising to fame, and Thurlow was just emerging from obscurity. He remained three years in the Temple,
and, having been called to the bar, returned to Charleston
in 1761. He commenced practice at the Charleston bar when
he was twenty-two; his success was immediate. Instead of
rising by degrees, he burst forth at once an able lawyer and
an accomplished orator. His ideas were clear and strong; his
utterance rapid, but distinct; his active and energetic manner
of speaking forcibly impressed his sentiments on the mind
and heart; he successfully used both argument and wit.
When the news of the passage of the stamp act reached
Charleston he was chosen, by an assembly of the people, one
of the delegates to the first Congress held in New York.
Afterward, in 1774, he was sent with his brother, Edward
Rutledge, to the Continental Congress. At the meeting to
appoint delegates, question arose as to the power which
should be conferred on them. Rutledge insisted that they
should have plenary discretion, with power to pledge the
people of South Carolina to abide by whatever the delegates
would agree to; some one asked what must be done in case
the delegates made a bad use of their power? His laconic
answer was, "Hang them."
The Province of South Carolina on the 26th of March,
1776, adopted a State Constitution and established a State
Government; Rutledge was chosen President, or Governor.
When the British fleet of forty vessels approached Charleston, early in June, 1776, the decision and energy of the
Governor caused the superiority of his genius to be acknowl
ï~~ADDRESS OF MR. SEMMES. 679
edged by all. In the course of a few days five or six thousand men were assembled for the defense of Charleston.
General Charles Lee, who had been appointed by Congress
to take command in the Southern Department said that Fort
Moultrie was a slaughter pen, and advised Governor Rutledge
to order its abandonment. Rutledge declined to give the
order, and wrote thus to Moultrie: "General Lee wishes you
to evacuate the Fort, you will not do so without an order
from me. I would sooner cut off my right hand than write
one."
In 1780 Charleston fell, and no one could say when the
Legislature might again be able to meet; that body, before
its adjournment, clothed "the Governor and such of his council as he could conveniently consult with power to do everything necessary for the public good, except take away the
life of a citizen without a legal trial." Hence he was called
" Dictator John."
The British overran South Carolina, drove Rutledge from
the State and defeated Gates. But Rutledge did not despair;
he applied all his energies to the task of reorganizing the
army; he commissioned Sumter as a Brigadier General, he
conferred elevated rank on Pickens and Marion, procured
from Congress a commission for Morgan, so that when
Greene arrived he found Morgan at the head of his riflemen
in Gates's army. Greene, in a letter written after the battle
of Cowpens, describes the wretched condition of affairs, and
then says: "We are obliged to subsist ourselves by our industry, aided by the influence of Governor Rutledge, who is
one of the first characters I ever met."
In January, 1782, he called the Legislature together and
surrendered his powers, because he thought them too great
to be vested in any man in a free country, except to meet a
ï~~680 THE SUPREME COURT OF THE UNITED STATES.
pressing emergency temporarily. No complaint was ever preferred against him for his administration while Dictator. He
was an active and prominent member of the Convention
which framed the Constitution of the United States; he overcame the opposition which the Constitution met with in
South Carolina when it was submitted for ratification to the
State Convention. He filled the office of Chancellor of the
Equity Court of his State, and in 1791i was appointed Chief
Justice of its law Court. He was appointed by Washington
and confirmed by the Senate as an Associate Justice of the
Supreme Court of the United States immediately on its organization in September, 1789, his commission being first in
date. Having been appointed Chief Justice of South Carolina
in February, 1791, he resigned the office of Associate Justice
of the Supreme Court. In 1792 he lost his wife, an event
that touched the deepest feelings of his heart, for he was both
gentle and tender by nature.
He died i8th July, i8oo, leaving eight children, six sons
and two daughters. He was tall, well framed and robust;
his forehead broad, his eyes dark and piercing; his mouth
indicated firmness and decision; his hair, combed back according to the fashion of the day, was powdered and tied behind.
His aspect was resolute, and wore an expression of thought
and determination. His feelings were warm and ardent, and
he had an impulsive energy, which, however, was controlled by
a vigorous common sense. Earnestness was the secret of his
power; the supreme element of his character was "Force."
Ellsworth was appointed March 4, 1796, and he too, like
Jay, while holding the office of Chief Justice, was sent on a
foreign mission. He was selected by President Adams as one
of the envoys to France on Feb. 2, 1799, and left for Paris
in the fall of that year.
ï~~ADDRESS OF MR. SEMMES.
681
He attained eminence at the bar very early in life, but
he cuts no figure in the Revolution until he took his seat in
Congress in the fall of 1778; from that period till 1782 he
was an active member of the Committee of Appeals and aided
Robert Morris in his financial schemes. After the Revolutionary war he was a conspicuous member of the Convention
of 1787. He was jealous of the dominance of the larger
States, and to his unyielding pertinacity the country is indebted for the final compromise of the Constitution, which
gave to each State equality of representation in the Senate.
He always urged the necessity of preserving the existence
and agency of the State governments; the only chance, said
he, of maintaining a general government lies in grafting it
on those of the individual States.
To the sarcasm of Wilson, "that we are forming a government for men and not for imaginary beings called States,"
and to the invective of King against "the phantom of State
Sovereignty," he replied "that his happiness depended on the
existence of the States as much as a new-born infant on its
mother for nourishment." In the Convention of his State
called to ratify the Constitution he made an admirable speech,
urging union as the only mode of saving Connecticut from
the rapacity of New York on one side and of Massachusetts
on the other. He said: "If we do not unite shall we not be
like Issachar of old, a strong ass crouching down between
two burdens?"
Elected to the Senate under the new Constitution, he
framed the Judiciary Act of 1789, which alone is a monument to his skill and intellectual vigor. While he presided
in the Court, but little business came before it, and no case
of great importance was decided.
Ellsworth was tall, erect, with firm and penetrating blue
ï~~682 THE SUPREME COURT OF THE UNITED STATES.
eyes, and of dignified demeanor. His manners were plain,
simple and unaffected. Patient, attentive and laborious, he
was endowed with great power of reflection, investigation and
argument. President Adams speaks of him "as a great man
of business." He himself said that he had no imagination,
nor had he any fertility of mind or opulence of knowledge.
It might be said of him what Hazlitt said of Pope: "He
would be more delighted with a patent lamp than with the
'pale reflex of Cynthia's brow' that fills the sky with its soft
silent lustre, that trembles through the cottage window, and
cheers the watchful mariner on the lonely wave."
In Ellsworth's speeches there is no fancy, no grace, no
splendor of diction, no genius; for genius is a mind in which
imagination, intelligence and feeling exist in an elevated proportion and in exact equation. It has a penetrating view of
ideas, and incarnates them powerfully in brass, in marble or
in language. Ellsworth was a man who studied one subject
at a time, and kept at it till he mastered it; he seldom
worked with other men's tools; he had great penetration, remarkable power of analysis, and, like most men of intellect
without much culture, he seized on the strong point, and left
it for no other,-like Hercules with his club, armed with a
single weapon, but that one powerful and massive.
He was earnest in tone, energetic in manner, lucid and
simple in language, illustrating by a diagram, not a picture.
In early life he was intended for the ministry, and studied
theology a year after he graduated from Princeton College.
He was called to the Bar in 1771, and married shortly afterward Miss Wolcott. Having nothing to live on, his father
gave him a lease of a small, wild, uncultivated farm near
Hartford. After three years' struggle with poverty, success
at the bar was attained.
ï~~ADDRESS OF MR. SEMMES.
683
Although a grave and religious man of the New England type, he had conversational talents, and was agreeable
in the social circle. He was a domestic man and especially
fond of little children. Both of these traits are portrayed in
the following letter written to his wife while he was Senator
in the first Congress then sitting in New York:
The family in which I live have no white children. But I often
amuse myself with a colored one about the size of our little daughter,
who peeps into my door now and then, with a long story, which I cannot more than half understand. Our two sons I sometimes fancy that I
pick out among the little boys playing at marbles in the street. Our
eldest daughter is, I trust, alternately employed between her book and
her wheel. You must teach her what is useful; the world will teach
her enough of what is not. The nameless little one I am hardly enough
acquainted with to have much idea of; yet I think she occupies a corner of my heart, especially when I consider her at your breast.
The story told of him by one of his biographers I can
scarcely credit. After a protracted absence in Europe, he returned home. The whole family, who were expecting his
arrival, descried him at a distance in his carriage, and hastened forth to welcome him. The biographer says he alighted
from his carriage; but he spoke not to his wife, nor did he
embrace his children. He glanced not even at his twin boys;
but, leaning over the gate and covering his face, he silently
breathed a prayer in gratitude to God.
The picture may be true; but it is not natural. Any
man, except, perhaps, Simon Stylites, would have kissed his
wife and children first.
Chase, when made Chief Justice in 1864, though younger
than Taney and older than Marshall; in face, figure and
majestic presence, was more distinguished than either.
He was less a lawyer than Taney, but he brought to the
ï~~684 THE SUPREME COURT OF THE UNITED STA TES.
bench a stock of learning equal to that which Marshall had begun
with. His health failed in 1870; his eyes lost their lustre, and
his face became wan and emaciated, so that in fact his judicial
life practically terminated several years before his death in 1873.
When appointed he had been for many years engaged in
political affairs, and it was difficult for him to throw off the
hopes and aspirations and love of power which political life
engenders. He was, in fact, an able politician, and felt that
he could best serve his country as a statesman. He gives this
estimate of himself in a letter to the Rev. Joshua Leavitt, dated
October 7, 1863: "I really feel," he says, "as if with God's
blessing I could administer the government of this country so
as to secure and imperdibilize (there's a new word for you)
our institutions, and create a party fundamentally and thoroughly democratic, which would guarantee a succession of
successful administrations."
This aspiration was not entirely suppressed while he was
robed in the ermine of justice.
Mr. Justice Clifford says:
Appointed, as it were, by common consent, he seated himself easily
and naturally in the chair of justice, and gracefully answered every demand upon the station, whether it had respect to the dignity of the office
or to elevation of the individual character of the incumbent, or to his
firmness, purity or vigor of mind.
From the first moment he drew the judicial robes around him he
viewed all questions submitted to him, as a judge, in the calm atmosphere
of the bench, and with the deliberate consideration of one who feels that he
is determining issues for the remote and unknown future of a great people.
Throughout his judicial career he always maintained that dignity of
carriage and that calm, noble and unostentatious presence that uniformly
characterized his manners and deportment; in the social circle and in
his intercourse with his brethren, his suggestions were always couched in
friendly terms, and were never marred by severity or harshness.
ï~~ADDRESS OF MR. SEMMES.
685
The faculty of reason was very broad and strong in him,
yet without being vast or surprising; his education had all
been of a kind to discipline and invigorate his natural powers;
his oratory was vigorous, with those qualities of clearness,
force, and earnestness which produce conviction.
His force of will was prodigious; his courage to brave and
his fortitude to endure were absolute.
His adhesion to the Christian faith was constant and sincere, and he accepted it as the master and ruler of his life.
He had a devout confidence in the moral government of the
world by a personal God, as a present and real power controlling and directing all human affairs. He was all his life
a great student of the Scriptures, and no modern speculations
ever shook his belief.
Chief Justice Waite was a native of the State of Connecticut and a graduate of Yale College. His father held a high
judicial position in Connecticut. Having studied law he emigrated to Ohio, prompted, no doubt, by the sturdy independence of his own nature. He achieved marked success in his
profession, which caused him to be made one of the counsel
of the United States in the matter of the Geneva arbitration.
His argument in reply to that of Sir Roundell Palmer attracted some attention, but he was almost unknown to the
profession and to the country when appointed Chief Justice by
President Grant in January, 1874. He was not a great man,
nor was he born to be the leader of men; nor had he any
great ambition, nor any of that genius which in its struggle
for supremacy seeks to surmount the world and say, like
Lucifer, "place my throne by the throne of God." But to a
certain extent his elevation re-enforced his character. There
is no man called suddenly into public life who, in passing
from his own house to preside in the capital of the nation over
ï~~686 THE SUPREME COURT OF THE UNITED STATES.
the most dignified, if not the most powerful, tribunal on earth,
has not been changed-transfigured. If he has not been it is
evidence of such hopeless mediocrity that even the hand of
God would hardly be able to produce anything from it.
Waite was trained in the ways of the law and of the
courts; his opinions do not convey the impression of a commanding intellect, but they are clear, terse, vigorous and
judicial.
He was absorbed in the obligations and responsibilities of
his office, having no ambition beyond it. He was in manner
plain, unattractive and unostentatious; his genial and social
nature, combined with amiable courtesy, endeared him to the
members of the bar. He was an upright and impartial judge,
a good man and a pious Christian.
After an intermission of ten minutes, Mr. Phelps, of
Vermont, was introduced.
ADDRESS BY HON. EDWARD J. PHELPS.
THE SUPREME COURT AND THE SOVEREIGNTY OF THE PEOPLE.
But few words remain to be added to those so well
spoken by my distinguished brethren, in concluding, on the
part of the Bar, the expression which this occasion calls for.
We have thought it well to mark, in a manner thus significant and conspicuous, the centennial anniversary of our highest and greatest tribunal; to review, so far as the flying hour
allows, its eventful and interesting history; to recall some of
its memories, cherished and imperishable; and to consider, in
the light of a century's experience, what has been and what
is like to be hereafter, its place and its influence as an independent constitutional power in the Federal Government of
this country.
ï~~ADDRESS OF MR. PHELPS. 687
We cannot forget that in its origin it was an experiment,
untried and uncertain. Judicial history has not furnished
another example of a court, created by an authority superior
to legislation and beyond the reach of executive power, clothed
with a jurisdiction above the law it was appointed to administer, and charged not merely with the general course of
public justice, but with the limitation of the powers of political government, and the adjustment of the conflicting claims
of sovereign States. The hundred years that now terminate
have tested the value of all American institutions. Fortunate
as they have been for the most part, it will yet be the judgment of dispassionate history, that no other has so completely
justified the faith of its authors, or fulfilled with such signal
success the purpose of its foundation.
What was that purpose? Not the limited original jurisdiction of the Court, dignified and important, but rarely
invoked. Not chiefly even, its ordinary appellate jurisdiction, extensive and beneficent as it is, most desirable, yet
perhaps not indispensable. Not for these objects, great
though they are, was it placed or did it need to be placed on
the singular eminence it occupies. Its principal and largest
function was designed to be, as it has been, the defence
and preservation of the Constitution that created it, as the
permanent fundamental law on which our system of government depends.
Had that instrument been left only directory to the
legislature, to be construed and given effect as the exigencies
of party or the purposes of the hour might demand; had it
been referred to the conflicting determination of various
courts, with no supreme arbiter to correct their mistakes, or
to harmonize their disagreements, so that its meaning might
depend upon the State or the tribunal in which the question
ï~~688 THE SUPREME COURT OF THE UNITED STATES.
happened to arise, it would speedily have become but the
shadow of an authority that had no real existence, fruitful in
a discord it was powerless to allay. American experience has
made it an axiom in political science, that no written constitution of government can hope to stand, without a paramount
and independent tribunal to determine its construction and to
enforce its precepts, in the last resort. This is the great and
foremost duty cast by the Constitution, for the sake of the
Constitution, upon the Supreme Court of the United States.
The jurisdiction of the Court over questions of this sort,
and the dual sovereignty so skillfully divided between the
States and the Federation, as they are the most striking, are
likewise the only entirely original features in the Constitution. All else found a precedent or at least a prototype in
previous institutions. In its other branches it is mainly the
combination and adaptation of machinery that was known
before. It was to be expected, therefore, that the earliest and
most critical exercise of the new power conferred upon the
Court, would be displayed in dealing with the new form of
sovereignty at the same time devised, and bringing into harmony those opposite forces that might so easily have resulted
in conflict and disaster. The questions that have arisen in
this field have been usually the most delicate, often the most
difficult, always the most conspicuous of all that have engaged
the attention of the Court. While it has been charged with
the limitation of many other departments of governmental
authority, here have been found hitherto its most prominent
employment, and the most dangerful emergencies it has had
to confront. Here have taken place its most celebrated judgments, the most signal triumphs of its wisdom, its foresight,
as well as its moral courage-rarest of human virtues. It is
to this sagacious judicial administration of the Constitution
ï~~ADDRESS OF MR. PHELPS.
689
that we are principally indebted for the harmonious operation
that has attended the Federal system, each party to it made
supreme in its own sphere, and at the same time strictly
confined within it, neither transgressing nor transgressed.
Looking back now upon this long series of determinations, it
is easy to see how different American history might have
been, had they proved less salutary, less wise, and less firm.
The Court did not make the Constitution, but has saved it
from destruction. Only in the one great conflict, generated by
the single inherent weakness of the Constitution, and unhappily beyond judicial reach, has the Court failed to maintain
inviolate all the borders and marches of contiguous jurisdiction, and to keep unbroken the peace of the Union.
But it still remains to be observed that the service of
preserving, through the Constitution, the Union of the States,
great and distinguished as it is, and vital as it is, has been
wrought upon the machinery of government, not upon its
essence. Beyond and above the question how a political system shall be maintained, lies the far larger question, Why
should it be maintained at all? The forms of free government are valuable only as they effect its purpose. They may
defend liberty, but they do not constitute it, nor necessarily
produce it. Their ultimate permanence, therefore, among the
men of our race, must depend, not on themselves, but on
their results.
The true analysis of the function of the Supreme Court
as the conservator of the Constitution, involves consequently
the further inquiry, What is the value of the Constitution to
those who dwell under the shadow of its protection?
It rests upon the foundation-stone of popular sovereignty.
The true definition of that familiar and much-abused phrase
is not always kept in view. The sovereignty of the people is
44
ï~~690 THE SUPREME COURT OF THE UNITED STA TES.
not the arbitrary power or blind caprice of the multitude, any
more than of an aristocracy or a despot. It is not the right of
any class, small or great, high or low, to wrong or oppress
another. It is not a struggle between classes at all. It is
simply the recognition of the natural and equal rights of man
as the basis of a government formed for their protection by
its people, and regulated by law. A system under which every
citizen, in the peace of God and of the State, shall be assured
by indefeasible right and not by favour or sufferance, in the
enjoyment of his life, his liberty, his property in all its forms,
his home, his family relations, his freedom of conscience and
of speech. The powers of government, in all their extent and
elaboration, come down at last to this ultimate purpose. For
this they exist, and on this foundation is raised all that renders social life desirable. "In my mind," says Lord Brougham, "he was guilty of no error, he was chargeable with no
exaggeration, he was betrayed by his fancy into no metaphor,
who once said that all we see about us, King, Lords, and
Commons, the whole machinery of the State, all the apparatus
of the system and its varied workings, end in simply bringing twelve good men into a box."
The world has seen empires and dynasties without number, based upon arbitrary power. But for the most part it has
seen them perish. They have illuminated the page of history,
but with the light of the comet and the meteor, not of the
stars. The civilization they have brought forth has been as
transient as themselves. Neither government nor civilization
contained any element of permanence, until they came to be
founded upon the principles of civil and religious liberty.
Magna Charta was therefore the starting-point, not merely of
free institutions, but of the only civilization that ever did or
ever could survive political systems, and pass on unimpaired
ï~~ADDRESS OF MR. PHELPS.
691
from the ruins of one to the construction of another. Its
striking and memorable language no rhetoric has been able
to improve, no casuistry to obscure. When it broke upon the
world it proclaimed a new era, the dawning of a better day for
humanity, in which the rights of man became superior to government, and their protection the condition of allegiance. The
great thought matured with a slow but certain growth. Battles enough were fought for it, but never in vain. Until at
last it came to be established forever upon English soil, and
among the English race on every soil. And the highest eulogy
upon the British Constitution was spoken when Chatham said:
"The poorest man may in his cottage bid defiance to all the
force of the crown; it may be frail, its roof may shake, the
wind may blow through it; the storm may enter, the rain may
enter, but the King of England cannot enter; all his forces
dare not cross the threshold of the ruined tenement." But
the great orator could go no further; he could not say that
the British Parliament might not enter the home of the subject, for all the judges of England are powerless in the face
of an Act of Parliament, whatever it may be. It was reserved
for the American Constitution to extend the judicial protection
of personal rights, not only against the rulers of the people,
but against the representatives of the people.
The history of the Saxon race exhibits few changes more
striking than the succession of power. First, in the king;
then, when royal supremacy became intolerable, in the hands
of the barons, who struck the earliest blow for freedom, and
long stood between the throne and the people, the supporters
of the one, the protectors of the other. When in the course of
time that oligarchy had in its turn abused its authority, it
passed to the Parliament chosen by the people. And when at
last the founders of our Constitution, driven to revolution by
ï~~692 THE SUPREME COURT OF THE UNITED STATES.
parliamentary oppression, had learned that even representative government cannot always be depended upon by those it
represents, they placed the protection of personal rights beyond the reach of the popular will, and found in a constitutional judiciary the true and final custodian of the liberty of
the subject.
The maintenance of these rights against all Federal interference was conferred upon the Court by amendment, almost
immediately after the adoption of the Constitution, and as
soon as it was perceived that the power ought to be expressed, because it might fail to be implied. The protection
of them against State invasion in one important particularthe inviolability of contracts-was provided in the original
Constitution. And when, twenty-two years ago, the interference of the States with the rights of life, liberty, and property was forbidden by the Fourteenth Amendment, the jurisdiction of the Court over this great subject became complete,
and will, beyond doubt, always remain so. But one exception still exists, in the power of Congress, within the limited
scope of its authority, to pass a law, though it may impair
the obligation of a pre-existing contract.
Other topics of constitutional interpretation will always
remain. The time will never come when questions of conflicting authority between the States and the Nation will cease
to arise. But that field must gradually grow smaller, and its
inquiries less critical. The main landmarks have now been
planted, the boundary lines traced, the cardinal rules strongly
and clearly established. Future labor in that direction, though
constant, will be easier and plainer than in the century that
has passed away.
But new attacks upon individual rights, in many forms
and under many pretexts, are beginning to be heard of, and
ï~~ADDRESS OF MR. PHELPS.
699
are to be looked for in an increasing measure. The accursed
warfare of classes is the danger that appears chiefly to threaten
the future. It requires little prescience to perceive that the
burden of constitutional administration by the Court is to
shift hereafter in a considerable degree from the preservation
of the machinery of government, to the enforcement of its
ultimate object; from conflicts between the States and the
Federation, to those between the State and the citizen, involving the protection of property, of contracts, of personal rights.
But the best assurance that the Court will be found equal to
the emergencies that are to come, whatever they may prove
to be, is seen in the success with which it has encountered
those of the past. And that success is most clearly shown
by the public confidence it has inspired. The people of this
country have learned to have faith in the Court, and pride in
it. Elevated and in a measure isolated as it is, they still feel
it to be their own. Many a plain man has never seen it, nor
ever expects to see it. He cannot discriminate its jurisdiction, nor understand its procedure. The principles of its
jurisprudence are not for his comprehension. But he reposes
with a more confident security under the roof his industry has
raised, and enjoys with a better assurance the liberty that has
made him free, because he knows there is a limit which oppression cannot transgress; that he can never be disseized
nor outlawed, nor otherwise destroyed; that no agency of
power can go upon him or send upon him, but by the judgment of his peers and the law of the land; and he believes
that if the worst should come to the worst, and wrong and
outrage should be found intolerable and yet without other redress, there is still laid up for him a remedy under the Constitution of his country, to be compassed in some way or
other, in the Supreme Court of the United States.
ï~~694 THE SUPR E ME COURT OF THE UNITED STATES.
Long and late may it be, Sir, before that confidence is
shaken. If it is sometimes childlike in its simplicity, it is
always noble in its origin. Long and late may it be before
even the suggestion shall penetrate the faith of common men,
that the highest American justice is not for them. May no
consideration of convenience, no pressure of business, ever
seek its relief in any limitation, which shall carry the idea
to the body of the people, that there is reserved in this country for the powerful corporation, the millionaire and the great
financier, an ultimate justice that the humbler citizen cannot
reach; that a ruinous cause may be decided against him
without redress; and yet the same judgment in the case of
another man, whose dealings are larger in amount though
smaller in relative consequence, may be reversed and set
aside as unlawful and unjust. Lawyers know that purely
constitutional questions are not measured by figures. But
that discrimination between the special and the general jurisdiction can neither be made nor understood by the mass of
men. And such questions form, after all, but a small part
of the administration of justice. Public confidence is a sensitive plant. No institution in a free government can afford to
endanger it.
And thus, by the inexorable logic of sound constitutional
principles, it has been brought to pass, that the rights of the
people find their last and best security, not in the popular
assembly, nor in any agency of its creation, but in that institution of government which is furthest of all beyond the
popular reach, which is made, as far as any institution can
be, independent of public feeling, and invulnerable to the
attack of majorities. Having its origin in the sovereignty of
the people, it is the bulwark of the people against their own
unadvised action, their own uninstructed will. It saves them,
ï~~ADDRESS OF MR. PHELPS.
695
not merely from their enemies, it saves them from' themselves.
And so it perpetuates the sovereignty from which it sprang;
and which has best provided for its own supremacy, by the
surrender of a power it was dangerous to retain. For this
purpose alone, aside from those necessary to its own maintenance, does the National Government cross the line of the
States. All merely legal rights of the citizen, outside of
Federal affairs, are left dependent upon the authority of the
State in which he is found. Only the cardinal personal
rights are taken in charge by the Nation, as between the
Government and the individual, because only through that
protection can be assured either the value or the permanence
of a Constitution, which is itself the Government, and itself
the Union.
The experience of American free government has shown
that it is the tendency of its legislative branches to decrease,
and of its judicial power to rise, in public estimation. It has
added a fresh demonstration to the truth that is as old as
the history of freedom, that it must find its safety where it
found its origin, in the exertions of those to whom truth is
better than popularity, and right superior to gain. And has
proved again what has been proved so often, that the only
liberty humanity can tolerate, is the liberty that is under
the law.
To you, our especial and most honoured guests-Justices
of the Court whose nativity we celebrate-more than Patres
Conscri'tbi in our Republic-the Bar of this country, in all its
length and breadth, has to-day but one greeting to offer, one
message to convey. It is the assurance of their supreme
respect, their unfaltering confidence, their cordial attachment.
The relations of the Court with the advocates who have
from time to time gathered about it, have been always
ï~~696 THE SUPREME COURT OF THE UNITED STATES.
among its happiest incidents. It has had the good fortune in an uncommon degree, to inspire them not merely
with respect, but with a sincere personal affection. To this
sentiment you have never been strangers, and you never will
be. If the words of eulogy that have been so felicitously
uttered by my brother have touched those who have gone
before you rather than yourselves, it is because, and only
because, they are with the dead and you are still among the
living. Long may that restraint seal the lips of your
eulogists.
Judges will be appointed and will pass away. One generation rapidly succeeds another. But whoever comes and
whoever goes, the Court remains. The King may die, but
still the king survives. Strong in its traditions, consecrated
by its memories, fortified with the steadfast support of the
profession that surrounds it, anchored in the abiding trust of
its countrymen, the great Court will go on-and still go on.
Keeping alive through many a century that we shall not see,
the light that burns with a constant radiance upon the high
altar of American constitutional justice.
The acknowledgments of the Court were made by Chief
Justice Fuller, who, in presenting Mr. Justice Field, spoke as
follows:
REMARKS OF CHIEF JUSTICE FULLER.
Mr. Chairman:
I rise to express to the New York State Bar Association
and to those who have co-operated with it, on behalf of the
Supreme Court of the United States, the appreciation of its
members of the admirable manner in which the Centennial
Anniversary of the Organization of the Judicial Department of
ï~~REMARKS OF CHIEF JUSTICE FULLER. 697
the General Government is being celebrated, and their sense of
the cordial hospitality with which they have been welcomed to
the metropolitan city, where the first session of the court was
held. Their acknowledgments are due for the terms in which
that welcome has been extended during these exercises, and
for the discriminating and eloquent addresses in historical and
biographical review of the court, and in exposition of its
powers, the ends which it secures, and the vital functions
which it exercises in the masterly constitutional scheme devised to perpetuate popular government-addresses worthy of
the eminent men who have pronounced them, leaders of that
great fraternity whence the membership of courts is derived,
and upon whose assistance and support all courts rely.
But it is not for me, while tendering these acknowledgments, to enter upon those comprehensive reflections suggested
by the occasion, and which should find expression on our
part. That grateful duty appropriately devolves upon one of
those veteran jurists, the fruitful labors of whose many years
have imparted imperishable fame to the tribunal and themselves. Three of them, still shining in use, find work of
noble note may yet be done in the cause to which their lives
have been dedicated; while another, the recipient of the liveliest attachment on the part of his brethren and of the people
he has served so well, maintains, in his well-earned retirement, a never-ceasing interest in the exalted administration of
justice.
And I deem it a peculiar felicity thatatt a celebration
conducted under the auspices of the Bar of the State of New
York-that Bar which has given to the Supreme Bench a
Jay, a Livingston, a Thompson,. a Nelson and a Hunt, and
whose Blatchford continues most worthily to adorn it-I am
enabled to. introduce, as a representative of the court, a member
ï~~698 THE SUPREME COURT OF THE UNITED STATES.
of that same Bar who has reflected so much credit upon its
training in more than thirty years of distinguished judicial
service, Mr. Justice FIELD of California.
ADDRESS OF MR. JUSTICE FIELD.
"THE CENTENARY OF THE SUPREME COURT."
Mr. President and Gentlemen.
As the Chief Justice of the United States has been pleased
to refer to my former connection with the Bar of this State
and city, I beg to say that I still claim, with pride, memberbership there, and trust that the claim will be allowed. Although I remained in this city but a few years, swept away
by the current which set, in 1849, for the Eldorado of the
West, dreaming that I might perhaps in some way aid in laying the foundations of that great Commonwealth, which every
one saw was to arise on the Pacific, I carried with me, and still
retain, pleasant recollections of the learned Bar of that period,
and of its great lawyers, to whom I looked up with admiration, George Wood, George Griffin, Daniel Lord, Francis B.
Cutting, Benjamin F. Butler, John Duer, Charles O'Conor,
James B. Gerard, James T. Brady and others-names never
spoken of throughout our land without profound respect. In
my subsequent life, in the varied experiences with which it
has been marked, and with the extended acquaintance I have
had with the legal profession, I have always regarded them as
among the ablest and most learned of great advocates.
The Chief Justice in behalf of himself and his associates
has expressed in fitting terms their high appreciation of the
courtesy extended to them by the Bar Association of the State
of New York, the remembrance of which they will carry
through life. He has also expressed the pleasure which they
ï~~IM
ADDRESS OF MR. JUSTICE FIELD. 699
have felt, in common with all here present, in listening to the
addresses made upon the organization of the Supreme Court,
and its place in the constitutional system of the United States,
and upon the lives and careers of the Justices who, by their
expositions of the Constitution and their maintenance of its
principles, have shed lustre upon that tribunal. But far beyond these eloquent discourses, and beyond the power of expression in words, is the eulogium presented by this vast
assembly,---composed of great lawyers, eminent Judges, and
men distinguished in different departments of life for their
honorable public services,-gathered from all parts of our
country, to celebrate the centennial anniversary of the court's
organization, and to listen to the story of its labors during the
hundred years of its existence,-an assembly presided over by
one who has held the high' office of President of the United
States.
In (very age and with every people there have been cele.
brations for triumphs in war--for battles won on land and on
sea-and for triumphs of peace, such as the opening of new
avenues of commerce, the discovery of new fields of industry
and prosperity, the construction of stately temples and monuments, or grand edifices for the arts and sciences, and for the
still nobler institutions of charity.
But never until now has there been in any country a
celebration like this, to commemorate the establishment of a
judicial tribunal as a co-ordinate and permanent branch of its
government. The unobtrusive labors of such a department,
the simplicity of its proceedings, unaccompanied by pomp or
retinue, and the small number of persons composing it, have
caused it to escape rather than to attract popular attention
and applause.
This celebration had its inspiration in a profound rever
ï~~700 THE SUPREME COURT OF THE UNITED STATES.
ence for the Constitution of the United States as the sure and
only means of preserving the Union, with its inestimable
blessings, and the conviction that this tribunal has materially
contributed to its just appreciation and to a ready obedience
to its authority. For that Constitution the deepest reverence
may well be entertained. Its adoption was essential to that
dual government, by which alone free institutions can be maintained in a country so widely extended as ours, embracing
every variety of climate, furnishing different products, supporting different industries, and having in different sections
people of different habits and pursuits, and, in many cases, of
different religious faiths.
Of this complex government-of its origin and operationI may be pardoned if I say a few words, before speaking of
its judicial department and of the peculiar functions which
distinguish it from the judicial departments of all other countries, and before speaking of the necessity of legislation, that
its tribunal of last resort may be as useful in the future as
we believe it has been in the past.
Experience has shown that in a country of great territorial extent and varied interests, peace and lasting prosperity
can exist with a civilized people only when local affairs are
controlled by local authority, and at the same time there are
lodged in the general government of the country such sovereign
powers as will enable it to regulate the intercourse of its
people with foreign nations and between the several communities, protect them in all their rights in such intercourse, defend the country against invasion and domestic violence, and
maintain the supremacy of the laws throughout its whole
domain. This principle the framers of the Constitution acted
upon in establishing the government of the Union, by leaving
unimpaired the power of the States to control all matters of
ï~~ADDRESS OF MR. JUSTICE FIELD.
701
local interest, and creating a new government of sovereign
powers for matters of general and national concern. They
thus succeeded in reconciling local self-government--or homerule as it is termed-with the exercise of national sovereignty for national purposes. Under this dual government
each State may pursue the policy best suited to its people and
resources, though unlike that of another State. And yet there
can be no violent conflicts so long as the central government
exercises its rightful power, and secures them against foreign
invasion and internal violence, and extends to the citizens of
each State protection in the others. The adaptation of this
form of government for a far more extended territory than that
existing at its adoption, has been demonstrated by the addition to the Union of new States with interests and resou frces
in many respects essentially different from those of the original
States, but which, from experience of its benefits and their instinctive yearning for nationality, have formed a like attachment to the Constitution.
The prosperity which has followed this distribution of
governmental powers not only attests the wisdom of the framers
of the Constitution, but transcends even their highest expectations. In the history of no people-ancient or modern-has
anything been known at all comparable with the progress
of the country since that time in the development of its
resources, in the addition to its material wealth, in its application of science to works of public utility, in the increase
of its population, and in the general contentment and happiness of its people. The predictions of the most enthusiastic as to its growth and prosperity never equaled the
stupendous reality.
The Constitution of the United States, which, in ordaining this complex government, has been productive of such
ï~~702 THE SUPREME COURT OF THE UNITED STATES.
vast results, was the outgrowth of institutions and doctrines
inherited from our ancestors and applied under the new conditions of our country. A distinguished English statesman
has designated it as the most wonderful product struck off
at a given time by the brain and purpose of man; but this
designation is only true as to the character of the instrument. Though it received definite form from the labors of
the Convention of 1787, it was, in its division of governmental
powers into three departments, and in its guaranties of private
rights, the product of centuries of experience in the government of England. It had its roots deep in the past, as all
enduring institutions have. The colonists brought with them
the great principles of civil liberty, which had been established there after many a conflict with the Crown, and which
were proclaimed in Magna Charta and in the Declaration of
Rights. Our country was in this respect the heir of all the
ages. Not a blow was struck for liberty in the Old World
that did not wake an echo in the forests of the New. Every
vantage ground gained there on its behalf was courageously
and stubbornly held here. Thus liberty, with all its priceless
blessings, passed from country to country, from hemisphere
to hemisphere, and from generation to generation. Claiming
this inheritance, the Continental Congress, assembled in 1774
to provide measures to resist the encroachments of the British
Crown, declared that the inhabitants of the colonies were entitled, "by the immutable laws of nature, the principles of
the English Constitution and their several charters, to all the
rights, privileges and immunities of free and natural-born subjects within the realm of England." And when a subsequent
Congress, in 1776, declared the independence of the colonies,
it proclaimed that the rights of man to life, to liberty and to
the pursuit of happiness-having then risen to a just appre
ï~~ADDRESS OF MR. JUSTICE FIELD.
708
ciation of their true source-were held by him, not as a boon
from king or parliament, or as the grant of any charter, but
as the endowment of his Creator, and declared also that to
secure these rights-not to grant them-governments are
instituted among men, deriving their just powers from the
consent of the governed. The different communities, which,
by the separation from the mother country, had ceased to be
colonies and had become States, when framing new constitutions to conform to their new conditions, inserted guaranties for the protection of these rights, with other provisions
required for the government of free commonwealths.
It was foreseen, however, by members of the Continental
Congress, and by thoughtful patriots throughout the country,
that when the independence of the colonies was recognized by.
the mother country, as sooner or later it must be, they would
be at once surrounded by difficulties and dangers, threatening
their peace and even their existence as independent communities. It was plain to them that, without some common protecting power, disputes from conflicting interests and rivalries,
incident to all neighboring States, would arise between them,
which would inevitably lead to armed conflicts and invite
the interference of foreign powers, ending in their conquest
and subjection; and that all that was gained by the experience of centuries and by the revolution on behalf of the
rights of man and free government would be lost.
To provide against these apprehended dangers, a federation or league between the States was proposed as a measure
of common defense and protection. Articles of Confederation
were accordingly framed and submitted to the legislatures of
the States, and finally adopted in 1781.
But, as we all know, these articles provided no mode
of carrying into effect the measures of the Confederation, or
ï~~704 THE SUPREME COURT OF TILHE UNITED STATES.
even the treaties made by it. They established no tribunal
to construe its enactments and enforce their provisions. Its
power was simply that of recommendation to the States, its
framers appearing to have believed that the States had only
to know what was necessary, in the judgment of Congress,
for the general welfare, to provide adequate means for its
accomplishment. A government which could only enforce its
enactments upon the approval of thirteen distinct sovereignties
necessarily contained within itself the seeds of its dissolution;
it could not give the general protection needed. Having no
power to exact obedience or to punish for disobedience to its
advisory ordinances, its recommendations were disregarded not
only by States but by individuals.
But though the government of the Confederation failed
to accomplish the purpose of its creation, its experience was
of inestimable value; it made clear to the whole country
what was essential in a general government in order to give
the needed security and protection, and thus prepared the
way for the adoption of the Constitution of the United States.
So out of. the necessities of the times, to preserve whatever
of freedom had been gained in the past,-gained after years
of bitter experience, both in the mother country and in our
own,-and to secure its full fruition in the future, that instrument was framed and adopted. By it the great defects
of the Confederation were avoided, and a government created
with ample powers to give to the States and to all their
inhabitants the needed security-a government taking exclusive charge of our foreign relations, representing the people
of all the States in that respect as one nation, with power
to declare war, make peace, negotiate treaties and form alliances, and at the same time securing a republican government to each State and freedom of intercourse between the
ï~~ADDRESS OF MR. JUSTICE FIELD. 705
States, equality of privileges and immunities to citizens of
each State in the several States, uniformity of commercial
regulations, a common currency, a standard of weights and
measures, one postal system, and such other matters as concerned all the States and their people.
By the union of the States, which had its origin in the
necessities of the war of the Revolution, which was declared
in the Articles of Confederation to be perpetual, but which
was rendered perfect only under the Constitution, the political
body known as the United States was created and took its
place in the family of nations. With that union the States
became, in their relations to foreign countries and their citizens or subjects, one nation, and their people became one
people, with a government designed to be perpetual. A dissolution of the Union would, indeed, remit the States to their
original position of separate communities, and the United
States ceasing to be a political body would pass from the
family of nations. But such a possibility was never considered by the framers of the Constitution; no provisions are
found within it contemplating such a result. As aptly stated
by Chief Justice Chase, "the Constitution in all its provisions
looks to an indestructible Union composed of indestructible
States." Its government was clothed with the means to give
effect to all its measures, which none have been able during
the century of its existence successfully to resist. In the late
civil war its strength was subjected to the severest test. But
notwithstanding the immense forces wielded by the Confederate States, the extent of territory they controlled, and the
vast numbers which recognized their authority, the government of the Union never for one hour renounced its claim to
supreme authority over the whole country, and to the allegiance of every citizen thereof. And when the contest ended
45
ï~~706 THE SUPREME COURT OF THE UNITED STA TES.
-a contest which was the most tremendous and awful civil
war known in history, though made resplendent with unprecedented acts of heroic courage on both sides-the armies of
the Confederate States were scattered, and their whole government overthrown. Whilst the fiery courage and martial spirit
of their people extorted our admiration,-we are all of the
same warrior race,--their attempts to break the Union only
disclosed the immovable solidity of its foundations and the
massive strength of its superstructure. It was the dash of
the tempestuous waves against the eternal rock. And, now,
in all its wide domain, in respect to every right secured by
the Constitution, no citizen of the Republic is beyond its
power or so humble as to be beneath its protection. We can
now confidently look forward to the time when the country
will embrace hundreds of millions of people, and are justified
in believing that the States will be united then, as now, by
kindred sentiments, and common pride in the greatness and
the glory of the country. We have an abiding faith that
when we shall have surpassed-as we are destined to do-in
the vastness of our empire, as in the civilization and wealth
of our people, ancient Rome in her greatest days, we shall
continue to be, for all national purposes, as now, one nation,
one people, one power.
The crowning defect in the government under the Articles of Confederation was the absence of any judicial power;
it had no tribunal to expound and enforce its laws.
In no one particular was the difference between that government and the one which superseded it more marked than
in its Judicial Department. The Constitution declares not
only in what courts the judicial power of the United States
shall be vested, but to what subjects it shall extend. It is
vested in one Supreme Court and in such inferior courts as
ï~~ADDRESS OF MR. JUSTICE FIELD.
707
Congress may from time to time ordain and establish, and it
extends not only 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; but also to all cases in law and equity arising
under the Constitution, the laws of the United States and
treaties made under their authority. Cases are considered as
arising under the Constitution, laws and treaties of the United
States, whenever any question respecting that Constitution and
those laws or treaties is presented in such form that the judicial power can act upon it-that is to say, when a right or
claim is asserted for the maintenance of which a construction
of that Constitution, or of a law or a treaty of the United
States, is required.
No government is suited to a free people where a judicial
department does not exist with power to decide all judicial
questions arising upon its constitution and laws.
The Judicial Department established under the Constitution is thus co-extensive; it reaches to every judicial question
which arises under the Constitution, treaties, and laws of the
United States. It has devolved upon it, when such a question
arises, beyond the ordinary functions of a judicial department
under a single, as distinguished from a dual, government, the
duty of determining whether the delegation of powers to Congress on the one hand, or the reservation of powers to the
States on the other, is passed by either, and thus of preventing jarring conflicts. And in two particulars it is distin
ï~~708 THE SUPREME COURT OF THE UNITED STATES.
tinguished from the judicial department of any other country;
one, in that it can summon before it the States of the Union,
and adjust controversies between them, going even to the extent of determining disputes as to their boundaries, rights of
soil and jurisdiction; the other, in that it can determine the
validity or invalidity of an act of Congress or of the States,
when the validity of either is assailed in litigation before it.
Controversies between different States of the world respecting their boundaries, rights of soil, and jurisdiction have
been the fruitful source of irritation between their people, and
not unfrequently of bloody conflicts. The history of many of
the principalities of Germany in the fifteenth century is a
history of desolating wars over disputed boundaries. The
license, disorders and crimes usually attendant upon border
warfare were the cause of widespread misery, until the establishment under Maximilian of an Imperial chamber for the
* settlement of such controversies, which brought out of chaos
order and tranquillity in the German Empire.
Between the States in this country, under the Articles of
Confederation, there were also numerous conflicts as to boundaries and consequent rights of soil and jurisdiction. They
existed between Pennsylvania and Virginia; between Massachusetts and New Hampshire; and between Virginia and New
Jersey. By the judicial article of the Constitution all such
controversies are withdrawn from the arbitrament of war to
the arbitrament of law. Thus, for the first time in the history
of the world is the spectacle presented of a provision embodied
in the fundamental law of a country, that controversies between
States-still clothed, for purposes of internal government, with
the powers of independent communities-shall be submitted to
the peaceful and orderly modes of judicial procedure for settlement-controversies which Lord Chancellor Hardwicke, in
ï~~ADDRESS OF MR. JUSTICE FIELD.
709
the case of Penn v. Lord Baltimore, said were worthy the
judicature of a Roman senate rather than of a single judge.
The practical application of the power of the Supreme
Court in this particular has been fruitful of happy results.
In 1837, it settled a disputed boundary between Rhode Island
and Massachusetts; in 1849, it brought to an adjustment the
disputed line between Missouri and Iowa; and, in 1870, it
settled the controversy between Virginia and West Virginia as
to jurisdiction over two counties within the asserted boundaries of the latter. Certainly no provision of the Constitution
can be mentioned, more honorable to the country or more expressive of its Christian civilization, than the one which provides that controversies of this character shall be thus peacefully settled. In determining them, the court is surrounded
by no imperial guard; by no bands of janissaries; it has with
it only the moral judgment and the invisible power of the
people. Should the necessity arise, that invisible power would
soon develop into a visible and irresistible force.
" The power of the court to pass upon the conformity with
the Constitution of an act of Congress, or of a State, and
thus to declare its validity or invalidity, or limit its application, follows from the nature of the Constitution itself, as the
supreme law of the land,-the separation of the three departments of government into legislative, executive and judicialthe order of the Constitution-each independent in its sphere,
and the specific restraints upon the exercise of legislative
powers contained in that instrument. In all other countries,
except perhaps Canada under the government of the Dominion, the judgment of the legislature as to the compatibility of
a law passed by it with the constitution of the country has
been considered as superior to the judgment of the courts.
But under the Constitution of the United States, the Supreme
ï~~710 THE SUPREME COURT OF THE UNITED STATES.
Court is independent of other departments in all judicial matters, and the compatibility between the Constitution and a
statute, whether of Congress or of a State, is a judicial and
not a political question, and therefore is to be determined by
the court whenever a litigant asserts a right or claim under
the disputed act for judicial decision.
This power of that court is sometimes characterized by
foreign writers and jurists as a unique provision of a disturbing and dangerous character, tending to defeat the popular
will as expressed by the legislature. In thus characterizing
it they look at the power as one that may be exercised by
way of supervision over the general legislation of Congress,
determining the validity of an enactment in advance of its
being contested. But a declaration of the unconstitutionality
of an act of Congress or of the States cannot be made in that
way by the Judicial Department. The unconstitutionality of
an act cannot be pronounced except as required for the determination of contested litigation. No such authority as supposed would be tolerated in this country. It would make the
Supreme Court a third house of Congress, and its conclusions
would be subject to all the infirmities of general legislation.
The limitations upon legislative power, arising from the
nature of the Constitution and its specific restraints in favor
of private rights, cannot be disregarded without conceding
that the legislature can change at will the form of our
government from one of limited to one of unlimited powers.
Whenever, therefore, any court, called upon to construe an
enactment of Congress or of a State, the validity of which is
assailed, finds its provisions inconsistent with the Constitution,
it must give effect to the latter, because it is the fundamental
law of the whole people, and, as such, superior to any law of
Congress or any law of a State. Otherwise the limitations
ï~~ADDRESS OF MR. JUSTICE FIELD. 711
upon legislative power expressed in the Constitution or implied
by it must be considered as vain attempts to control a power
which is in its nature uncontrollable.
This unique power, as it is termed, is therefore not only
not a disturbing or dangerous force, but is a necessary consequence of our form of government. Its exercise is necessary
to keep the administration of the government, both of the United
States and of the States, in all their branches, within the
limits assigned to them by the Constitution of the United
States, and thus secure justice to the people against the unrestrained legislative will of either-the reign of law against
the sway of arbitrary power.
As to the decisions of the Supreme Court respecting the
constitutionality of acts of Congress or of the States, they have,
as a general rule, been recognized as furthering the great purposes of the Constitution;-as where, in Gibbons v. Ogden, the
court declared the freedom of the navigable waters of New
York to all vessels, against a claim of an exclusive right to
navigate them by steam vessels under a grant of the State to
particular individuals--or where, as in Dartmouth College v.
Woodward, the court enforced the prohibition of the Constitution against the impairment by the legislation of a State
of the obligation of a contract, declaring void an act of New
Hampshire which altered the charter of the college in essential
particulars, and holding that the charter granted to the trustees
of the college was a contract within the meaning of the Constitution and protected by it; and that the college was a private
charitable institution not under the control of the legislature;
--or where, as in Brown v. Maryland, the court declared that
commerce with foreign nations could not, under a law of the
State, be burdened with a tax upon goods imported, before
they were broken in bulk, though the tax was imposed in;,,;
-;_;.
"- '
A:..
d tY".
ï~~712 THE SUPREME COURT OF THE UNITED STATES.
the form of a license to sell;-or where, as in Weston v.
Charleston, the court declared that the bonds and securities
of the United States could not be subjected to taxation by the
States, and thus the credit of the United States be impaired;
--or where, as in McCulloch v. Maryland and Osborn v. Bank
of the United States, the court denied the authority of the
States, by taxation or otherwise, to impede, burden, or in any
manner control the means or measures adopted by the government for the execution of its powers;-or where, as in
Hall v. De Cuir; The Wabash Railway Co. v. Illinois; The
Philadelphia and Southlkern Steamship Co. v. Pennsylvania, and
other cases determined in the last quarter of a century, the
court has removed barriers to interstate and foreign commerce
interposed by State legislation.
And so in the great majority of cases in which the validity
of an act of Congress or of a State has been called in question, its decisions have been in the same direction, to uphold
and carry out the provisions of the Constitution. In some
instances the court, in the exercise of its powers in this respect, may have made mistakes. The judges would be more
than human if this were not so. They have never claimed
infallibility; they have often differed among themselves. All
they have ever asserted is, that they have striven to the utmost of their abilities to be right, and to perform the functions
with which they are clothed, to the advancement of justice and
the good of the country.
In respect to their liability to err in their conclusions
this may be said-that in addition to the desire which must
be ascribed to them to be just-the conditions under which
they perform their duties, the publicity of their proceedings,
the discussions before them, and the public attention which is
drawn to all decisions of general interest, tend to prevent any
ï~~ADDRESS OF MR. JUSTICE FIELD.
718
grave departure from the purposes of the Constitution. And,
further, there is this corrective of error in every such departure; it will not fit harmoniously with othier rulings; it
will collide with them, and thus compel explanations and
qualifications until the error is eliminated. Like all other
error it is bound to die; truth alone is immortal, and in the
end will assert its rightful supremacy.
And now, with its history in the century past, what is
needed, that the Supreme Court of the United States should
sustain its character and be as useful in the century to come?
I answer, as a matter of the first consideration,-that it should
not be overborne with work, and by that I mean it should
have some relief from the immense burden now cast upon it.
This can only be done by legislative action, and in determining what measures shall be adopted for that purpose Congress
will undoubtedly receive with favor suggestions from the Bar
Associations of the country. The Justices already do all in
their power, for each one examines every case and passes his
indiyidual judgment upon it. No case in the Supreme Court
is ever referred to any one Justice, or to several of the Justices, to decide and report to the others. Every suitor, however humble, is entitled to and receives the judgment of every
Justice upon his case.
In considering this matter it must be borne in niind that,
in addition to the great increase in the number of admiralty
and maritime cases, from the enlarged commerce on the seas,
and on the navigable waters of the United States, and in the
number of patent cases from the multitude of inventions
brought forth by the genius of our people, calling for judicial
determination, even to the extent of occupying a large portion
of the time of the court, many causes, which did not exist
upon its organization or during the first quarter of the cen
ï~~714 THE SUPREME COURT OF THE UNITED STATES.
tury, have added enormously to its business. Thus by the
new agencies of steam and electricity in the movement of
machinery and transmission of intelligence, creating railways
and steamboats, telegraphs and telephones, and adding almost
without number to establishments for the manufacture of fabrics, transactions are carried on to an infinitely greater extent
than before between different States, leading to innumerable
controversies between their citizens, which have found their
way to that tribunal for decision. More than one-half of the
business before it for years has arisen from such controversies.
The facility with which corporations can now be formed
has also increased its business far beyond what it was in the
early part of the century. Nearly all enterprises requiring for
their successful prosecution large investments of capital are
conducted by corporations. They, in fact, embrace every
branch of industry, and the wealth that they hold in the
United States equals in value four-fifths of the entire property
of the country. They carry on business with the citizens of
every State as well as with foreign nations, and the litigation
arising out of their transactions is enormous, giving rise to
every possible question to which the jurisdiction of the Federal courts extends.
The numerous grants of the public domain, embracing
hundreds of millions of acres, in aid of the construction of
railways; also for common schools, for public buildings and
institutions of learning; have produced a great variety of
questions of much intricacy and difficulty. The discovery of
mines of the precious metals, in our new possessions on the
Pacific Coast, and the modes adopted for their development,
have added many more. The legislation required by the exigencies of the civil war, and following it, and the constitutional amendments which were designed to give farther
ï~~ADDRESS OF MR. JUSTICE FIELD.
715
security to personal rights, have brought before the court
questions of the greatest interest and importance, calling for
the most earnest and laborious consideration. Indeed, the
cases which have come before this court, springing from
causes which did not exist during the first quarter of the century, exceed, in the magnitude of the property interests involved, and in the importance of the public questions presented,
all cases brought within the same period before any court of
Christendom.
Whilst the constitutional amendments have not changed
the structure of our dual form of government, but are additions to the previous amendments, and are to be considered
in connection with them and the original Constitution as one
instrument, they have removed from existence an institution
which was felt by wise statesmen to be inconsistent with the
great declarations of right upon which our government is
founded; and they have vastly enlarged the subjects of Federal jurisdiction. The amendment declaring that neither slavery
nor involuntary servitude, except as a punishment for crime,
shall exist in the United States or any place subject to their
jurisdiction, not only has done away with the slavery of the
black man, as it then existed, but interdicts forever the slavery
of any man, and not only slavery, but involuntary servitude
-that is, serfage, vassalage, villeinage, peonage, and all other
forms of compulsory service for the mere benefit or pleasure
of others. As has often been said, it was intended to make
every one born in this country a free man and to give him
a right to pursue the ordinary vocations' of life without other
restraint than such as affects all others, and to enjoy equally
with them the fruits of his labor. The right to labor as he
may think proper without injury to others is an element of
that freedom which is his birth-right.
ï~~710 THE SUPREME COURT OF THE UNITED STATES.
The amendment, declaring that no State shall make or
enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor 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, has proclaimed that equality before the law shall
forever be the governing rule of all the States of the Union,
which every person however humble may invoke for his protection. In enforcing these provisions, or considering the laws
adopted for their enforcement, or laws which are supposed to
be in conflict with them, difficult and far-reaching questions
are presented at every term for decision.
Up to the middle of the present century the calendar of
the Court did not average 14o cases a term, and never amounted
at any one term to 300 cases; the calendar of the present
term exceeds 1,5oo. In view of the condition of the Courtits crowded docket-the multitude of questions constantly
brought before it of the greatest and most extended influence
-surely it has a right to call upon the country to give it
assistance and relief. Something must be done in that direction and should be done speedily to prevent the delays to
suitors now existing. To delay justice is as pernicious as to
deny it. One of the most precious articles of Magna Charta
was that in which the King declared that he would not deny
nor delay to any man justice or right. And assuredly what
the barons of England wrung from their monarch, the people
of the United States will not refuse to any suitor for justice
in their tribunals.
Furthermore, I hardly need say, that, to retain the respect
and confidence conceded in the past, the Court, whilst cautiously abstaining from assuming powers granted by the Constitution to other departments of the government, must un
ï~~ADDRESS OF MR. JUSTICE FIELD.
717
hesitatingly and to the best of its ability enforce, as heretofore, not only all the limitations of the Constitution upon the
Federal and State governments, but also all the guarantees it
contains of the private rights of the citizen, both of person
and of property. As population and wealth increase-as the
inequalities in the conditions of men become more and more
marked and disturbing-as the enormous aggregation of wealth
possessed by some corporations excites uneasiness lest their
power should become dominating in the legislation of the
country, and thus encroach upon the rights or crush out the
business of individuals of small means-as population in some
quarters presses upon the means of subsistence, and angry
menaces against order find vent in loud denunciations-it
becomes more and more the imperative duty of the Court to
enforce with a firm hand every guarantee of the Constitution.
Every decision weakening their restraining power is a blow to
the peace of society and to its progress and improvement.
It should never be forgotten that protection to property and
to persons cannot be separated. Where property is insecure,
the rights of persons are unsafe. Protection to the one goes
with protection to the other; and there can be neither prosperity nor progress where either is uncertain.
That the Justices of the Supreme Court must possess the
ability arid learning required by the duties of their office, and
a character for purity and integrity beyond reproach, need not
be said. But it is not sufficient for the performance of his
judicial duty that a judge should act honestly in all that he
does. He must be ready to act in all cases presented for his
judicial determination with absolute fearlessness. Timidity,
hesitation and cowardice in any public officer excite and deserve only contempt, but infinitely more in a judge than in
any other, because he is appointed to discharge a public trust
ï~~718 THE SUPREME COURT OF THE UNITED STATES.
of the most sacred character. To decide against his conviction
of the law or judgment as to the evidence, whether moved by
prejudice or passion, or the clamor of the crowd, is to assent
to a robbery as infamous in morals and as deserving of punishment as that of the highwayman or the burglar; and to
hesitate or refuse to act when duty calls is hardly less the
subject of just reproach. If he is influenced by Apprehensions
that his character will be attacked, or his motives impugned,
or that his judgment will be attributed to the influence of
particular classes, cliques or associations, rather than to his
own convictions of the law, he will fail lamentably in his high
office.
To the intelligent and learned Bar of the country the
judges must look for their most effective and substantial support. Its members appreciate more than any other class the
difficulties and labors and responsibilities of the judicial office;
and whilst the most severe and unsparing of critics, they are
in the end the most just in their judgments. If they entertain for the judges respect and confidence, if they accord to
them learning, integrity and courage, the general public will
not be slow in accepting their appreciation as the true estimate of the judges' character. Sustained by this professional
and public confidence, the Supreme Court may hope to still
further strengthen the hearts of all in love, admiration and
reverence for the Constitution of the United States the noblest
inheritance ever possessed by a free people.
At the conclusion of Mr. Justice Field's address the orchestra rendered Gillett's "Lion de Bal," which was to have
been followed by an Address by the President of the United
States, which was omitted owing to the detention of the President in Washington by the afflicting calamity which had be
ï~~ADDRESS OF MR. JUSTICE HARLAN.
719
fallen the family of Mr. Tracy, the Secretary of the Navy.
An "Ave Maria" was sung by the German Liederkranz Society. The National Hymn "Our Country 'Tis of Thee" was
then sung, the audience standing and joining. This was followed by the singing of the Doxology, after which the Benediction was pronounced by the Rev. Dr. Talbot W. Chambers
of the Collegiate Reformed Dutch Church. The audience then
dispersed, the orchestra playing Meyerbeer's "Fackeltanz in
B minor."
In the evening, at the banquet at the Lenox Lyceum,
Madison Avenue, in response to the toast "The Supreme
Court of the United States," Mr. Justice Harlan spoke as
follows:
ADDRESS OF MR. JUSTICE HARLAN.
"THE SUPREME COURT OF THIS UNITED STATES."
Mr. President:
The toast you have read suggests many reflections of interest. But when an attempt is made to give shape to them,
in my own mind, the fact confronts me that every line of
thought most appropriate to this occasion has been covered by
addresses delivered, in another place, by distinguished members of the bar, and by an eminent jurist responding on behalf of the Supreme Court of the United States. They have
left nothing to be added respecting the organization, the history, the personnel, or the jurisdiction of that tribunal. It is
well that those addresses are to be preserved in permanent
form for the delight and instruction of all that are to come
after us; especially those who, as judges and lawyers, will be
connected with the administration of justice. I name the
lawyers with the bench, because upon them, equally with the
ï~~720 THE SUPREME COURT OF THE UNITED STATES.
judges, rests the responsibility for an intelligent determination
oft causes in the courts, whether relating to public or to private rights. As the bench is recruited from the bar, it must
always be that as are the lawyers in any given period, so, in the
main, are the courts before which they appear. Upon the integrity, learning and courage of the bar largely depends the
welfare of the country of which they are citizens; for, of all
members of society, the lawyers are best qualified by education and training to devise the methods necessary to protect
the rights of the people against the aggressions of power.
But they are, also, in the best sense, ministers of justice. It
is not true, as a famous lawyer once said, that an advocate,
in the discharge of his duty, must know only his client. He
owes a duty to the court of which he is an officer, and to the
community of which he is a member. Above all, he owes a
duty to his own conscience. He misconceives his high calling if he fails to recognize the fact that fidelity to the court
is not inconsistent with truth and honor, or with a fearless
discharge of duty to his client. It need scarcely be said in
this presence that the American Bar have met all the demands
that the most scrupulous integrity has exacted from gentlemen in their position.
In the addresses to-day much was said of the Supreme
Court of the United States that was gratifying as well to
those now members of that tribunal as to all who take pride
in its history. But, Mr. President, whatever of 'honor has
come to that Court for the manner in which it has discharged
the momentous trust committed to it by the Constitution
must be shared by the bar of America. "Justice, sir," (I use
the words of Daniel Webster,)'" is the great interest of man
on earth. It is the ligament which holds civilized beings and
civilized nations together. Wherever her temple stands, and
ï~~ADDRESS OF MR. JUSTICE HARLAN.
721
so long as it is duly honored, there is a foundation for social
security, general happiness, and the improvement and progress
of our race. And whoever labors on this edifice with usefulness and distinction, whoever clears its foundations, strengthens its pillars, adorns its entablatures, or contributes to raise
its august dome still higher in the skies, connects himself, in
name and fame and character, with that which is and must
be as durable as the frame of human society." The Temple
of Justice which has been reared in this fair land is largely
the work of our lawyers. If there be security for life, liberty
and property, it is because the lawyers of America have not
been unmindful of their obligations as ministers of justice.
Search the history of every State in the Union, and it will
be found that they have been foremost in all movements
having for their object the maintenance of the law against
violence and anarchy; the preservation of the just rights both
of the government and of the people.
I read recently a brief speech by Mr. Gladstone, at a
banquet given many years ago in honor of the great French
advocate, Berryer. He had visited the south of Europe, and
witnessed there much cruel oppression of the people. The
executive power, he said, not only had broken the law, but
had established in its place a system of arbitrary will. He
found, to use his own words, that the audacity of tyranny,
which had put down chambers and municipalities and extinguished the press, had not been able to do one thing-to
silence the bar. He, himself, heard lawyers in courts of
justice, undismayed by the presence of soldiers, and in defiance of despotic power, defend the cause of the accused with
a fearlessness that could not have been surpassed. He was
moved, on that occasion, to say of the English Bar, what may
be truly said of the American Bar, that its members are in46
ï~~722 THE SUPREME COURT OF THE UNITED SATE S.
separable from our national life, from the security of our
national institutions.
It has been said of some of the judgments of the Supreme
Court of the United States that they are not excelled by any
ever delivered in the judicial tribunals of any country. Candor, however, requires the concession that their preparation
was preceded by arguments at its bar of which may be said,
what Mr. Justice Buller observed of certain judgments of
Lord Mansfield, that they were of such transcendent power
that those who heard them were lost in admiration " at the
strength and stretch of the human understanding."
Mr. President, I am unwilling to pass from this subject
without saying what it is but just to say, that the bar of this
imperial State has furnished its quota-aye more than its
quota, to the army of great lawyers and advocates, who, by
their learning, eloquence and labors, have aided the courts of
the Union, as well as those of the States, in placing our constitutional system upon foundations which, it is hoped, are to
endure for ages. Not to speak of the living, and not to name
all the dead who have done honor to the legal profession in
this State, I may mention Alexander Hamilton, "formed for
all parts, in all alike he shined, variously great," William H.
Seward, John C. Spencer, Thomas Addis Emmet, John Wells,
George Wood, Joshua A. Spencer, Benjamin F. Butler, Daniel
Lord, John Duer, James T. Brady, Ogden Hoffman, Charles
O'Conor and Roscoe Conkling. Gentlemen of the bar of New
York, you have in these and other great names upon the roll
of lawyers and advocates given to the country by your State,
an inheritance beyond all price.
But, Sir, while the Supreme Court of the United States is
indebted to the bar of the country for its invaluable aid in
the administration of justice, it is still more indebted to the
ï~~ADDRESS OF MR. JUSTICE HARLAN.
723
highest courts of the several States, and to the Circuit and
District Courts of the Union. Many distinguished members
of those courts- -judges whose learning and integrity are
everywhere recognized-have honored this occasion by their
presence. But it is a most felicitous circumstance that we
have with us the full bench of the New York Court of Appeals, of whose bar we are guests upon this occasion. Who
can adequately estimate, who can overstate the influence for
good upon American jurisprudence which has been exerted by
the learned judgments delivered by those who have graced
the bench of this proud State? Kent, Livingston, Thompson,
Spencer, Jones, Nelson, Oakley, Savage, Walworth, Marcy,
Bronson, Denio and Selden, not to mention others, will be
remembered as long as the science of law has votaries. If
what they wrote were obliterated altogether from our judicial
history, a void would be left in American jurisprudence that
could not be filled. Indeed, the history of American law
could not well be written without referring to the judgments
and writings of those eminent jurists.
And here it is appropriate to say that the duty of expounding the Constitution of the United States has not
devolved alone upon the courts of the Union. From the
organization of our government to the present time that duty
has been shared by the courts of the States. Congress has
taken care to provide that the original jurisdiction of the
courts of the Union of suits at law and in equity arising
under the Constitution and laws of the United States, or under
treaties with foreign countries, shall be concurrent with that
of the courts of the several States. This feature of our judicial system has had much to do with creating and perpetuating the feeling that the government of the United States is
not a foreign government, but a government of the people of
ï~~724 THE SUPREME COURT OF THE UNITED STATES.
all the States, ordained by them to accomplish objects pertaining to the whole country, which could not be efficiently
achieved by any government except one deriving its authority
from all the people.
As we stand to-night in this commercial metropolis, where
the government created by the Constitution was organized,
and where the supreme judicial tribunal of the Union held
its first session, it is pleasant to remember that all along its
pathway that court has had the cordial co-operation and support of the highest court of this, the most powerful of all the
States. The Supreme Court of the United States, and the
highest court of New York have not always reached the same
conclusions upon questions of general law, nor have they
always agreed as to the interpretation of the Constitution of
the United States. But, despite these differences, expressed
with due regard to the dignity and authority of each tribunal,
they have stood together in maintaining these vital principles
enunciated by the Supreme Court of the United States:
That while the preservation of the States, with authority
to deal with matters not committed to national control, is
fundamental in the American constitutional system, the Union
cannot exist without a government for the whole;
That the Constitution of the United States was made for
the whole people of the Union, and is equally binding upon
all the courts and all the citizens;
That the general government, though limited as to its
objects, is yet supreme with respect to those objects, is the
government of all, its powers are delegated by all, it represents all, and acts for all;
That America has chosen to be, in many respects and
to many purposes, a nation, and for all these purposes her
government is complete, to all these objects it is competent.
ï~~ADDRESS OF MR. JUSTICE HARLAN.
725
Mr. President, a few words more. The members of the
Supreme Court of the United States will return to their post
of duty, with grateful thanks for the opportunity given them
to participate in these Centennial exercises. It has been
good for us to be here. You have given us, gentlemen, renewed reason to think that the Court of which we are members is regarded with affection and confidence by the bar of
the country, and that as long as it shall be equal to the tremendous responsibilities imposed upon it, that affection and
confidence will not be withdrawn.
We have met here to celebrate the organization of that
Court, in this city, one hundred years ago-a tribunal fitly
declared to be the living voice of the Constitution. Within
that period the progress of the nation in all that involves the
material prosperity and the moral elevation of the people, has
exceeded the most sanguine expectations of those who laid
the foundations of our government. But its progress in the
knowledge of the principles upon which that government
rests, and must continue to rest, if it is to accomplish the
beneficent ends for which it was created, is not less marvelous.
It was once thought by statesmen whose patriotism is not to
be doubted, that the power committed to the Courts of the
Union, especially to the Supreme Court of the United States,
would ultimately destroy the independence, within their respective spheres, of the co-ordinate departments of the national
government, and even endanger the existence and authority of
the State governments. But the experience of a century, full
of startling political and social changes, has shown not only
that those apprehensions were groundless, but that the Father
of our Country was right when he declared, in a letter to the
first Chief Justice of the United States, that the judicial department was the keystone of our political fabric. Time has
ï~~726 THE SUPREME COURT OF THE UNITED STATES.
grandly vindicated that declaration. All now admit that the
fathers did not err when they made provision, in the fundamental law, for " one Supreme Court," with authority to determine, for the whole country, the true meaning and scope
of that law. The American people, after the lapse of a century, have a firm conviction that the elimination of that court
from our constitutional system would be the destruction of the
government itself, upon which depends the success of the experiment of free institutions resting upon the consent of the
governed. That those institutions, which have answered "the
true ends of government beyond all precedent in human history," may be preserved in their integrity; that our country
may, under all circumstances, be an object of supreme affection by those enjoying the blessings of our republican government; and that the Court whose organization you have assembled to commemorate may, in its membership as well as in its
judgments, always meet the just expectations of the people, is
the earnest wish of those to whom you have, on this occasion,
done so much honor.
On the 19th of February, 1890, the General Committee
met and resolved that a History of the Celebration be written
and published, and duly appointed a Committee to prepare
the same. It is in fulfilment of this duty that the foregoing
sketch has been prepared and approved by the Committee
thus appointed.
WILLIAM H. ARNOUX, Chairman.
GROVER CLEVELAND.
JULIEN T. DAVIES.
JOHN. F. DILLON.
WILLIAM ALLEN BUTLER.
ï~~APPENDIX.
The following is a list of the several committees appointed,
and the members comprising the same:
JUDICIARY CENTENNIAL COMMITTEE.
Chairman: Win. H. Arnoux............. New York.
Treasurer.: Francis Lynde Stetson.......... New York.
Secretary: Win. B. Hornblower........... New York.
Abbott, Austin...... New York. Ellsworth, T. E....... Lockport.
Alexander, Robt. C..... New York. Evarts, Win. M........ New York.
Anderson, Henry H... New York. Ewing, Thos...... New York.
Andrews, Arthur L....... Albany. Fairchild, Chas. S..... New York.
Astor, Win. W........ New York. Fancher, Enoch L..... New York.
Baker, Chas. S........ Rochester. Fassett, J. Sloat....... Elmira.
Becker, Tracy C........ Buffalo. Field, David Dudley... New York.
Beckley, John N..... Rochester. Fiero, J. Newton....... Kingston.
Benedict, Robert D...... Brooklyn. Fowler, R. L....... New York.
Blatchford, Samuel A.... New York. Gerry, Elbridge T..... New York.
Buchanan, Chas. J..... Albany. Gilbert, Jasper W...... New York.
Burfill, John E....... New York. Gillette, John..... Canandaigua.
Butler, William Allen.. New York. Gluck, Jas. F......... Buffalo.
Cardozo, Michael H... New York. Green, Robert S..... New York.
Carter, James C..... New York. Hale, Matthew....... Albany.
Chipp, Howard C., Jr... Kingston. Hirschberg, M. H..... Newburgh.
Choate, Joseph H...... New York. Hiscock, Frank...... Syracuse.
Clearwater, A. T..... Kingston. Hoadly, George...... New York.
Cleveland, Grover..... New York. Hornblower, Win. B.... New York.
Cockran, W. Bourke... New York. Isaacs, Meyer S..... New York.
Comstock, Geo. F....... Syracuse. Jay, John.......... Katonah.
Cooke, Martin W....... Rochester. Kernan, Francis........ Utica.
Coudert, Fredk. R..... New York. Knevals, Sherman W.... New York.
Cowen, Esek........ Albany. L'Amoreaux, Jesse S.. Ballston Spa.
Daly, Chas. P...... New York. Larocque, Joseph..... New York.
Davies, Julien T....... New York. Lockwood, Daniel...... Buffalo.
Davis, Noah....... New York. Lowrey, Grosvenor P.... New York.
Depew, Chauncey M... New York. McCook, John J..... New York.
De Witt, Win. C....... New York. Martin, Isaac P..... New York.
Dillon, John F........ New York. Milburn, John G...... Buffalo.
Diven, Geo. M........ Elmira. Mitchell, Wm....... New York.
727
ï~~728
APPENDIX.
Morton, Levi P....... New York.
Movius, E. H........ Buffalo.
Nash, Stephen P....... New York.
Nelson, Homer A.... Poughkeepsie.
Olmstead, Dwight H.... New York.
Opdyke, Win. S..... New York.
Parmenter, R. A......... Troy.
Parsons, John E..... New York.
Patterson, Chas. E........ Troy.
Peabody, Chas. A..... New York.
Peck, Fletcher C......... Nunda.
Pierrepont, Edwards... New York.
Proctor, L. B........ Albany.
Potter, Orlando B...... New York.
Poucher, Win. A........ Oswego.
Robertson, Wm. H...... Katonah.
Rogers, Sherman S...... Buffalo.
Rollins, Daniel G..... New York.
Root, Elihu........ New York.
Rosendale, Simon W......Albany.
Russell, Horace..... New York.
Russell, Leslie W..... New York.
Schoonmaker, Augustus.. Kingston.
Sewell, Robert...... New York.
Shepard, Elliott F...... New York.
Stetson, Francis L...... New York.
Tabor, Chas. F........ Albany.
Tracy, Benj'n F....... Brooklyn.
Turner, Robert T...... Elmira.
Van Vechten, A. V. W... New York.
Van Voorhis, John.... Rochester.
Wendell, John D...... Fort Plain.
Westbrook, Zerah S.... Amsterdam.
Wheeler, Everett P..... New York.
Whitney, Wm. C...... New York.
Winslow, John....... Brooklyn.
Woodford, Stewart L.... Brooklyn.
ExECuTIvE COMMITTEE.
Grover
Chauncey M. Depew,
David Dudley Field,
John F. Dillon,
Francis Lynde Stetson,
Robert Ludlow Fowler,
Charles P. Daly,
Cleveland, Chairman.
Wm. H. Arnoux,
Win. B. Hornblower,
Orlando B. Potter,
Joseph Larocque,
Robert Sewell,
James C. Carter,
I E-offcio.
Ex-offcio.
THE FINANCE COMMITTEE.
Orlando B. Potter, Chairman.
Elliott F. Shepard,
Elbridge T. Gerry,
Julien T. Davies,
Noah Davis,
Edwards Pierrepont,
Robert D. Benedict,
Horace Russell,
John G. Milburn,
Wm. H. Arnoux,
Wm. B. Hornblower,
Francis Lynde Stetson,
SEx-officio.
J
COMMITTEE ON INVITATIONS.
Joseph Larocque, Chairman.
A. V. W. Van Vechten, Elihu Root,
A. T. Clearwater, Wm. H. Arnoux,
Daniel G. Rollins, Wm. B. Hornblower,
COMMITTEE ON COMMEMORATIVE EXERCISES.
Robert Sewell, Chairman.
Thomas Ewing, John Winslow,
Frederick R. Coudert, Win. H. Arnoux,
George Hoadly, Wm. B. Hornblower,
} Ex-ofcio.
Ex-ofcio.
ï~~A PPEND IX.
729
COMMITTEE ON ENTERTAINMENTS AND RECEPTIONS.
James C. Carter, Chairman.
Joseph H. Choate, Everett P. Wheeler,
Matthew Hale, Win. S. Opdyke,
Martin W. Cooke, J. Sloat Fassett,
John Van Voorhis, M. H. Hirschberg,
William H. Robertson, George M. Diven,
Wm. M. Evarts, E. L. Fancher,
Frank Hiscock, Win. H. Arnoux,
Stewart L. Woodford, Win. B. Hornblower,
I Ex-officio.
COMMITTEE ON TRANSPORTATION.
Robert Ludlow Fowler, Chairman. Chauncey M. Depew.
SPECIAL COMMITTEE ON ENTERTAINMENT OF INVITED GUESTS.
Julien T. Davies, Chairman.
William Mitchell, Charles Henry Butler.
REPRESENTATIVE COMMITTEE OF THE AMERICAN BAR ASSOCIATION.
David Dudley Field, Chairman, N. Y. Edward J. Phelps..... Vermont.
Lyman Trumbull...... Illinois. Cortlandt Parker..... New Jersey.
Henry Hitchcock...... Missouri. Henry Wise Garnett. Dist. of Col'ba.
J. Randolph Tucker..... Virginia. Francis Rawle..... Pennsylvania.
Thomas J. Semmes.... Louisiana. Charles Henry Butler, Secretary, N. Y.
William C. Endicott. Massachusetts.
COMMITTEE ON PUBLICATION OF HISTORY OF CELEBRATION.
Win. H. Arnoux. Grover Cleveland. Julien T. Davies.
John F. Dillon. William Allen Butler.
ï~~TABLE OF
CASES.
(The Names of Leading Cases are Printed in Capitals.)
A.
ABLEMAN v. BOOTH, 22 Howard, 506 (1858), 376,
626.
Achison v. Huddleson, 12 Howard, 293 (1851).. 358
Active, The Sloop (1778)................ 53, 635
Adams v. Roberts, 2 Howard, 487 (1844).... 323
Almy v. The State of California, 24 Howard, 269
(x86o)....................... 437
Amistad, The, 15 Peters, 518 (1841)....... 327
Anderson v. Dunn, 6 Wheaton, 204 (x821).... 505
Antoni v. Greenhow, o107 U. S., 769 (1882).... 508
Armitz Brown v. The United States, 8 Cranch.,
12o (1814)................. 210
Asher v. The State of Texas, 228 U. S., 129 (x888), 544,
655.
Atlanta, The, 3 Wheaton, 409 (188)...... 226
B.
Bains v. The Schooner James and Catherine, x
Baldwin, 544 (x832)............. 32
Baldwin v. Franks, 120 U. S., 678 (2886).... 513
Baldwin, etal. v. Payne, et al., 6 Howard, 301
(1848)................... 316
Baltimore and Susquehanna R. R. Co. v. Nesbit,
et al,, io Howard, 395 (185o)....... 357
Bank of Alexandria v. Dyer, 14 Peters, 141 (2840) 3x6
Bank of Augusta v. Earle, 13 Peters, 519 (x839). 312
Bank of Hamilton v. Dudley's Lessees, 2 Peters,
492 (1829)................. 248
Bank of U. S. v. Deveaux, 5 Cranch, 62 (18o9), 22x, 639
Bank of the U. S. v. Primrose, 13 Peters, 519 (x839) 323
Bank v. Supervisors, 7 Wallace, 26 (1868).... 388
Bank Tax Case, 2 Wallace, 200 (1864)...... 388
Bank of Washington v. Hume, 228 U. S,, 165 (x888) 548
Barbier v. Connolly, x113 U. S., 27 (1884).... 518
BARRON v. THE MAYOR OF BALTIMORE,
7 Peters, 243 (1833)............. 266
Bartemeyer v. Iowa, 28 Wallace, 129 (1873) 514, 630
Bartlett v. Kane, 16 Howard, 263 (1853)."...."360
Bass v. Tingy, 4 Dallas, 37 (r8oo)........ 190
Bayard v. Singleton, z Martin (N. C.), 42 (1787). 123
Beckwith v. Bean, 18 Wallace, 510 (1873)."... 429
Beer Co. v. Massachusetts, 97 U. S., 25 (x877), 514, 643
730
Bigelow v. Forrest, 9 Wallace, 339 (i869).... 463
Bigler v. Waller, 14 Wallace, 297 (1871)..... 457
Bingham v. Cabbot, 3 Dallas, 19 (1795), 382 (1798) 182
Binghamton Bridge Case, 3 Wallace, 51 (1865).. 429
Boston Beer Co. v. Massachusetts, 97 U. S., 25, 514,
630, 643.
Bowman v. Chicago and Northwestern R. R. Co.,
125 U. S., 465(1887).......... 514, 521
Bowman v. Middleton, I Bay, 252 (1792).... 124
Bowman, et al. v. Wathen, et al., I Howard, 189
(1843)............................ 324
Boyce v. Tabb, x8 Wallace, 546 (1873)....... 422
Boyle v. Zacharie, 6 Peters, 348 (1832).... 267
Bradley v. Fisher, 23 Wallace, 336 (1871).... 439
Bradwell v. The State of Illinois, 16 Wallace, 130
(1872)................... 439
Breen v. Dewey, 16 Minn., 236 (1870)...... 450
Breitenbach v. Turner, 18 Wis., 140 (2864).. -. 450
Bridge Proprietors v. Hoboken Co., i Wallace, 116
(1863)................... 429
Brig Penobscot v. United States, 7 Cranch, 356
(1823).................. 210
BRISCOE v. THE BANK OF THE COMMONWEALTH OF KENTUCKY, 22 Peters, 257
(1837)................. 263, 305
Broderick's Excr. v. Magraw, 8 Wallace, 639 (1869) 449
Browne v. Strode, 5 Cranch, 303 (18oo)..... 210
BROWNE v. THE STATE OF MARYLAND,
22 Wheaton, 419 (1827).......... 262
Brown v. Houston, 114 U S., 622 (2884)..... 520
Bronson v Kempton, 8 Wallace, 444 (2869)... 443
Bronson v. Kinzie, Howard, 322 (1843)... *. 315
Bronson v. Rodes, 7 Wallace, 229 (1868).... 443
Brooks v. Missouri, x24 U. S, 394 (1887).... 525
Brush Electric Co., 43 Federal Reporter, 533 (1890) 542
Buffington v. Day, 1x Wallace, 3....... 654
Burbank v Conrad, 96 U. S., 291 (1877)...., 427
BURR, AARON, Trial of........... 2x8
Burr v. Duryee, i Wallace, 531 (1863).......435
Butler v. Horwitz, 7 Wallace, 258 (2868).... 443
Butz v. The City of Muscatine, 8 Wallace, 575
(1869)............................. 434
Byrne v. State of Missouri, 8 Peters, 40 (1834).. 263
ï~~TABLE OF CASES.
731
C.
CALDER v. BULL, 3 Dailas, 386 (z798).... z79
Cannon v. United States, zx6 U. S., 55 (x885) Â~ 499
Cardwell v. Bridge Co.. z113 U. S., 205 (1884). 522
Carpenter v. Bank, 39 Vt., 46 (,866)...... 450
Case v. Brown, 2 Wallace, 320 (1864)..... 435
Cassel v. Charles Carroll of Carrollton, t2 Wheaton,
134 (,826)................ 294
CHAE CHAN PING, 13o U. S., 581 (1889), 513, 640
CHARLES RIVER BRIDGE v. WARREN
BRIDGE, xzI Peters (1837)............ 292, 305
CHEROKEE NATION v. STATE OF GEORGIA, 5 Peters, 183x........ 267, 629, 642
Cherokee Trust Funds, z117 U. S., 288 (1885).. 512
Chester v. Experiment, 2 Dallas, 40 (1787).. 60o
Chicago v. Sheldon, 9 Wallace, 50o (x869).... 433
CHICAGO, BURLINGTON AND QUINCY
R. R. CO. v. IOWA, 94 U. S., 155 (1876), 516, 655
Chicago, etc., Railway Co. v. Minnesota, z34 U.
S., 418 (1889)............. 5:6
Chicago, etc., Railway Co. v. Minnesota, z34 U S.,
408 (189o)................... 555
Chinese Exclusion Case, 130 U. S., 581 (1889), 5z3-64o0
CHISHOLM EX'RS v. GEORGIA, 2 Dallas,
419 (1793)........ 126, 170, 270, 378, 631
Choctaw Nation v. United States, and U. S. v.
Choctaw Nation, i19 U. S., I (z886).. 512, 65:
Church v. Hubbart, 2 Cranch, 187 (x8o4).... 210o
Chy Lung v. Freeman, 92 U. S.. 275 (1875), 5:8, 655
City v. Lamson, 9 Wallace, 478 (1869)........ 433
CITY OF NEW ORLEANS v. HOUSTON,
119 U. S., 265 (1885).............524, 629
CITY OF NEW YORK v. MILN, 8 Peters,
x18 (1834)........................284
City of Providence v. Clapp, 17 Howard, z6z (1854) 360
CIVIL RIGHTS CASE, THE, 1o9 U. S., 3
(1883).................463, 496
Clark v. Young & Co., 2 Cranch, z8z (18o3)... 209
Clements v. Berry, I2 Howard, 398 (i850o).... 359
COHENS v. THE STATE OF VIRGINIA, 6
Wheaton, 264 (1821).... 247, 257, 626, 637, 64z
Coleman v. State of Tennessee, 97 U. S., 509 (1878) 429
Commercial Bank of Cincinnati v. Buckingham's
Executors, 5 Howard, 317 (1847).......... 309
Commonwealth Bank of Kentucky v. Griffith et al.,
14 Peters, 56 (1840).......... 309
Commonwealth of Kentucky v. Dennison, 24 Howard, 66 (2860).....................378
Commonwealth v. Caton et al., 4 Call, (Va.) 5,
(1782)................ 12o0
Confiscation Cases, The, 7 Wallace, 454 (1868). 463
Connecticut v. Pennsylvania (1782).... 67-71
Conrad v. Wafles, 96 U. S., 279 (1877).... 427
Cooke v. Graham's Adm'rs, 3 Cranch, 229 (1805) 2zo10
Cook v. Moffat, 5 Howard, 295 (1847).......331
COOLEY v. BOARD OF PORT WARDENS
OF PHILADELPHIA, 12 Howard, 300
(85)................. 304, 363
Cooper v. Telfair, 4 Dallas, 14 (18oo)...... 179
Cope v. Cope, 137 U. S., 682 (1891).... 542, 555
Coppell v. Hall, 7 Wallace, 542..,..... 654
Corbett v. Nutt, 1o Wallace, 464 (1870)..... 427
Corning v. Burden, 15 Howard, 253 (1853).... 354
Corporation of New Orleans v. Winter, z Wheaton,
92 (1816)................. 2z
County of Mobile v. Kimball, zo2 U. S., 691 (r8fa) 517
Covington Drawbridge Co. v. Shepherd, 20 Howard, 227 (1857)................... 3z4, 384
Cox v. Smith, z Nev., 151 (1865)........... 450
CRAIG v. THE STATE OF MISSOURI, 4
Peters, 4o10 (1830)............. 262
CRANDALL v. STATE OF NEVADA, 6 Wallace, 35 (1867)............... 435
Crow Dog, Case of, lo9 U. S., 556 (:883)... 554
Crowley v. Christensen, 137 U. S,, 86 (189o).. 548
CUMMINGS v. MISSOURI, 4 Wallace, 77 (z866) 422,
654.
Cunningham v. Macon and Brunswick R. R. Co.,
10zo9 U. S., 446 (z883)........... o. 508
Curtis v. Whitney, 13 Wallace, 68 (1871).... 430
D
DARTMOUTH COLLEGE CASE,4 Whaton,
5z8 (1819)................252, 65o
Davis v Beason, 133 U. S, 333 (1889)...... 555
Davis v. The Brig "Seneca," 18 Am. Jurist.. 32
Davis v Gaines, o104 U. S., 386 (z88z)...... 482
Davis v Gray, x6 Wallace, 203 (1872)..... 509
Davis v. South Carolina, 107 U. S, 599 (1882).. 502
Dawson's Lessee v Godfrey, 4 Cranch, 321 (8o8). 212
Decatur v. Paulding, 14 Peters, 497 (84o).. 311, 629
De Lovio v. Bolt, 2 Gallison, 398 (1815).... 3!, 32
Den ex demise Russell v. The Jersey Co. 15 Howard, 426 (1853)...................... 358
Dent v State of West Virginia, 129 U. S., 114
(1889)................. 553
Pick Duncan case............... 558
Diggs & Keith v. Wolcott, 4 Cranch, 179 (1807).. 221
Doane v. Penhallow,, Dallas, 218 (178o)..... 46
Dooly v Smith, 13 Wallace, 604 (z871)..... 457
Dorr v. Beidelman, 125 U. S., 68o (1887).... 5z6
Dow v. Johnson, 10zoo U S., 158 (x879)..... 429
Dows v. Chicago, i1 Wallace, zoS (z871)... 536
DRED SCOTT v. SANDFORD, 19 Howard,
393 (1857).....................366, 652
Ducat v Chicago, 1o Wallace, 4o10 (1870).... 439
Dulany v. Hodgkin, 5 Cranch. 333 (1809)..... 209
Duncan v. Darst etal., z Howard, 301 (1843)... 327
Dunlop & Co v Ball, 2 Cranch, 180o (z8o4).... 209
Durousseau and others v. The U. S., 6 Cranch, 308
(x8to)................... 221
E
EX PARTE BOLMAN and EX PARTE
SWARTWOUT, 4 Cranch, 75 (18o7).... 215
Ex parte Byers, 32 Federal Reporter, 4o4 (1887) 542
ï~~732
TABLE OF CASES.
Ex parte Clarke, zoo U. S., 399 (1879)... 493, 655
Ex parte Curtis,,o6 U. S., 371 (1882)..... 50o6
Ex parte Dorr, 3 Howard, 0zo4 (2845)....... 327
Ex PARTE GARLAND, 4 Wallace, 333 (1866), 422,
654.
Ex parte Hennen, z3 Peters, 23o (1839)... 3z1
Ex parte McCardle, 6 Wallace, 318 (2867). 425, 63o0
Ex parte McCardle, 7 Wallace, 506 (x868). 425
EX PARTE MILLIGAN, 4 Wallace, a (x866), 404
427, 653.
Ex parte Siebold, zoo U. S, 392 (2879). 492, 635, 655
Ex parte Spies, 123 U. S 23x (2887)...... 55
EX PARTE TERRY, 128 U. S.,289 (1888).. 549
Ex parte Thompson, z Flippin, 507 (2876)... 542
Ex parte Vallandigham, z Wallace, 243 (2863).. 4xo0
Ex parte Virginia, zoo U. S., 339 (879).... 490-655
Ex parte Yarbrough, zzo U. S., 65z (x883). 494, 655
Edward v. Elliot, 22 Wallace, 557 (1874).... 495
Eilenbecker v. District Court of Plymouth Co.,
234 U. S., 32 (89o)............ 548
Electrocution Cases, The........... 558
Elk v. Wilkins, 112 U. S., 94 (4884)...... 51
Elliott v. Wiltz, 207 U. S., 72x (1882)..... 508
Elmendorf v. Taylor, lo Wheaton, 152 (1825).. 433
Ennis et al. v. Smith, 24 Howard 400 (1852).. 360
Essex Co. v. Pacific Mills, 14 Allen (Mass) 389
(1867)................... 450
Etting v. The Bank of the U. S., 11 Wheaton,
59 (x826).................. 294
"Exchange," The schooner, v. McFadden and
others, 7 Cranch, 1z6 (812)......... 224
Express Cases, zz7 U. S, I (1885)....... 516
F
Fanny, The, z Dodson's Adm. Report, 443 (1814) 226
FARGO v. MICHIGAN, z2z U. S. 230 (1886) 262,
333, 52o.
Farmers' and Mechanics' Bank of Pennsylvania
v. Smith, 6 Wheaton, 13 (x822)...... 257
Faw v. Roberdeau's Excr., 3 Cranch, 275 (r' o5) 2zo0
Field et al. v. Holland et al. 6 Cranch, 8 (8zo0) 209
First National Bank v. Commonwealth of Kentucky, 9 Wallace, 353 (x869)........ 388
Fitzsimmons v. Ogden, 7 Cranch, 2 (182)... 210
FLETCHER v. PECK, 6 Cranch, 87 (18zo). 229, 65o
FLETCHER v. RHODE ISLAND, 5 Howard,
504 (1847)........... 329
Forepaugh v. R. R. Co, z28 Penna. St., 228
(1889)................. 320
Foster v. Kansas, z2 U. S., 20o (1884)'495, 524
Fowler v. Lindsey, 3 Dallas, 42z (2799).... 80o
Fox v. Stateof Ohio, 5 Howard, 41z (2847).. 334, 357
French's Exr. v. Bank of Columbia, 4 Cranch,
242 (1807)................. 20o9
Fretz et al. v. Bull et al, 22 Howard, 466 (z852) 365
Furman v. Nichol, 8 Wallace, 44........ 654
G
Gaines and wife v Chew, 2 Howard, 629 (1844) 327
Gaines v. Hennen, 24 Howard, 553 (z86o)... 327
Gaines v. Relf et al., 12 Howard, 473 (1851).. 327
Garcia v. Lee, 22 Peters, 522 (1838)......... 3xo0
GELPECKE v. THE CITY OF DUBUQUE
z Wallace, 274 (2863)............ 4o00
Gelston v. Hoyt, 3 Wheaton, 246 (1818).... 244
George v. Concord, 45 N. H., 434 (2864).... 450
GEORGIA v. STANTON, 6 Wallace, 50o (2867), 426,
629.
GIBBONS v. OGDEN, 9 Wheaton, 1 (2824), 259, 639,
647.
Gibbs v. The Consolidated Gas Co. of Baltimore, 230 U. S 397 (1888)......... 553
Gilman v. The City of Philadelphia, 3 Wallace
7z3 (x865)........................ 438
Glass v. The Sloop Betsey, 3 Dallas, 6 (x794).. 18o
Gloucester Ferry Co. v. Pennsylvania, 2z4 U. S.
296 (7884)................. 520
Golden v. Prince, 3 Washington C. C. Rep.,
324 (x824)................. 433
Gon-Shay-Ee, in re, o30 U. S., 343 (1889). 553
Gordon v. Caldcleugh, 3 Cranch, 269 (18o6).. 211
GRANGER CASES, THE (MUNN v. ILLINOIS, C. B. & Q. R. R. CO. v IOWA. 515
Grapeshot, The, 9 Wallace, z29 (2869)..... 420
Graves & Barnewell v. Boston Marine Ins. Co.,
2 Cranch, 49 (1805)............ 21o
Grayson v. The State of Virginia, 3 Dallas, 320
(2796).................. 169, 182
Green v. Biddle, 8 Wheaton, I (1823)... 227, 256
Green v. Liter, 8 Cranch, 229 (2824)..... 224
Griffith v. Frazier, 8 Cranch, z (1814)..... 21o
Griswold v. Hepburn, 2 Duvall (Ky.) 20 (1865) 450
Groves v. Slaughter, 15 Peter3, 449 (1841x)... 317
Guy v. Baltimore, zoo U. S. 434 (1879) *...* 517
H
Hagar v. Reclamation District, Ix U. S., 702
(2883)............................ 443
Hagood v. Southern, z7 U. S., 52 (:885).... 511
Hancock, The (1776).............. 49
Hannay v. Eve, 3 Cranch, 242 (8o06)...... 23
Hans v. Louisiana, 234 U. S., I (xb89).... *.555
Harp, The (1684)............... 30
Hartman v. Greenhow, 2o2 U. S., 72 (188o)... 523
Havemyer v. Iowa County, 3 Wallace, 294 (1865) 433
HAYBURN'S CASE, 2 Dallas, 409 (2792)....63
Head & Amory v. Providence Ins. Co., 2 Cranch,
228 (2804)................. 220
Head Money Cases, 12 U. S., 58o (1884)... 529
Henderson et al. v The Mayor of the City of New
York, 92 U. S., 259 (2875)........ 517
Henderson et ux. v. Griffin. 5 Peters, z52 (1831). 322
HEPBURN v. GRISWOLD, 8 Wallace, 603 (2869) 444
Hepburn & Dundas v. Ellzey, 2 Cranch, 445 (2805) 21
Herbert et al. v. Wren and Wife et al., 7 Cranch,
370 (2823)................. 20zo
Hickman v. Jones, 9 Wallace, 297 (z869)... 422
Hill v. Memphis, 134 U. S., 298 (1890)..... 555
Hine v. Trevor, 4 Wallace (x866)...... 562, 649
ï~~TABLE OF CASES,.
78833
Hing v. Crowley, z13 U. S., 703 (z885)..... 518
Hintrager zv. Bates, z8 Iowa, 174 (1864).... 450
Hollingsworth v The State of Virginia, 3 Dallas,
378 (1798)............ 77, 633
Holker, The........................ 57
Holmes v. Walton and others.......... 122
Home Insurance Co v. New York, z34 U. S., 594
(1890)................. 54z
Hopkirk v. Bell, 3 Cranch, 454 (i8o6)....... 212
Horne v. Lockhart, 17 Wallace, 580 (1873).. 428
Houston v. Moore, 3 Wheaton, 433 (1818)... 244
Hudson v. Guestier, 6 Cranch, 281 (i8io).... 223
Huntress, The, Davies R., o104......... 32
Huidekoper's Lessee v Douglass, 3 Cranch, 1
(18o05)............................210o
HYLTON v. THE UNITED STATES, 3 Dallas, 171 (1796)........ 178
I
In re Ayers, 123 U. S., 443 (z887)....... 5
In re Green, 134 U. S., 377 (1890)....... 556
In re Kemmler, 136 U. S., 436 (1890)..... 555
In re Loney, 134 U. S., 372 (1890o)....... 556
IN RE NEAGLE, 135 U. S., (1890o)... 502, 549
In re Thomas Kaine, 14 Howard, 10zo3 (1852).. 360
Insurance Co. v. Massachusetts, 1o Wallace, 573
(1870)................. 439
Irvine v. Lowry, 14 Peters, 293 (184o)..... 313
J
Jackson v. Chew, z2 Wheaton, 153 (1827)... 322
Jefferson Branch Bank v. Skelly,. Black, 436
(1861).................... 383
Jennings v. Carson, 4 Cranch, 2 (1807)..... 212
John Van Zandt, Case of, 5 Howard, 215 (1847) 392
JUILLARD v. GREENMAN, 11o U. S., 421
(1883).................502,628
K
Kendall v. Stokes, 3 Howard, 87 (1845).... 31z
KENDALL v. THE UNITED STATES, 12
Peters, 524 (1838)................ 310o, 628
Kennard v. State of Louisiana, 92 U. S., 480 (1875) 495
Kennett v. Chambers, 14 Howard, 38 (1852).. 359
Kidd v. Pearson, 128 U. S., 1 (1988), 540, 547, 629, 630
KILBOURN v. THOMPSON, 103 U. S., x68
(1880).......................504, 654
Klein's Case, 13 Wallace, 129 (1871)...... 427
Knote v. United States, 95 U. S., '54 (1877). Â~ 428
KNOX v. LEE, 12 Wallace, 457 (I87o)... 451, 463
Kring v. Missouri, 107 U. S, 221 (1882).... 484
L
La Roche et al. v. The Lessees of Jones et al., 9
Howard, z55 (z850o).................355
Later Legal Tender Cases (Knox v. Lee and
Parker v. Davis).............. 451
Lawrence v. Minturn, 17 Howard, zoo (1854). Â~ 364
League v. De Lung, t1 Howard, z85 (85o).. 359
Lee, The (1776).............. 49
Leffingwell v. Warren, a Black, 399 (1862).. 432
Legal Tender Cases, 12 Wallace, 528 (187o).. 503
LEGAL TENDER CASES, 12 Wallace, 457 (187z) 45z
Legal Tender Cases, 52 Pa. St., 9 (z866).... 450
LEISY v. HARDIN, 135 U. S. Rep., zoo (1889)
331, 544
Leloup v. Port of Mobile, 127 U. S., 640 (1887), 521,
655.
Le Roy et al. v. Tatham et al., z4 Howard, 156
(1852)................... 354
Le Roy et al. v. Tatham et a., 22 Howard, z32
(1859)..............,** 354
Levy v. Gadsby, 3 Cranch, z8o (z80o5)..... 210o
LICENSE CASES, THE, Thurlow v. Afassachusetts, Fletcher v. Rhode Island, Pierce
et al. v. New Hampshire, 5 Howard, 504
(1847)................. - 329
License Tax Cases, The, 5 Wallace, 462 (z866), 435,
439, 629.
Lick v. Faulkner, 25 Cal., 404 (1864)...... 450
Liquor Cases, The, 25 Kansas, 75z (288z)... 539
Little v. Barreme et al., 2 Cranch, z7o (18o4). 209
LOUISIANA v. JUMEL, 107 U. S., 7x11 (1882)
506, 523.
Louisiana v. Steele, z34 U. S., 230 (1890).... 555
Louisville, Cincinnati & Charleston R. R. Co. v.
Letson, 2 Howard, 497 (1844)...... 314, 384
LUTHER v. BORDEN, 7 Howard, x (1849), 335, 629
Lynch, The (1776)............... 49
Lyng v. Michigan, 135 U. S., 16z (189o).... 547
M
McCall v. California, 136 U. S, o5 (1890)... 543
McCULLOCH v. STATE OF MARYLAND,
4 Wheaton, 316 (1819)......... 249, 628
McCluny v. Silliman, 3 Peters, 277 (1830)... 433
McCracken v. Hayward, 2 Howard, 608 (1844) 316
McElmoyle v. Cohen, 13 Peters, 312 (1839).. 312
McGuire's Case, 3 Wallace, 302 (1865).)... 435
Mcllvaine v. Coxe's Lessee, 2 Cranch, 280 (1804) 211
Mcllvaine v. Coxe's Lessee, 4 Cranch, 321 (1808) 211
McKim v. Voorhies, 7 Cranch, 279 (1812..... 222
McKinney v. Carroll, 12 Peters, 66 (1838). 309
McLanahan v. The Universal Insurance Company, z Peters, 170 (1828)...... 294
McMillan v. McNeill, 4 Wheaton, 209 (1819).. 257
McVeigh v. Windsor, zz Wallace, 259 (1870).. 426
Mallow v. Hinde, 12 Wheaton, 193 (1827)... 276
Mandeville & Jameson v. Riddle & Co., z Cranch,
290o (803)................. 209
MARBURY v. MADISON, z Cranch, z37 (1803) 20o
630, 634.
Lake v. Hulbert, 2 Dallas, 40 (1787)......
Lambert's Lessee v. Paine, 3 Cranch, 97 (1805)
Lane County v. Oregon, 7 Wallace, 71 (z868).
Lane v. Vick, 3 Howard, 464 (1845).....
60o
210
443
322
ï~~784
TABLE OF CASES.
Marine Ins. Co., of Alexandria v. Wilson, 3
Cranch, 287 (1805)............. 210
MARTIN v. HUNTER'S LESSEE, x Wheaton, 304 (18z6)........... 245, 626, 637
Martin v. Martin, o20 N. J. Eq., 421 (1870)... 450
Martin et al. v. The Lessee of Waddell, z6 Peters, 367 (1842)............. 319, 357
Marshall v. The Baltimore & Ohio Railroad Co.,
z6 Howard, 314 (1853)........... 360
Mary, The Sloop, i Paine, 673 (1824)....... 32
Mason v. Ship Blaireau, 2 Cranch, 240 (x8o4). 210
Massachusetts v. Vermont, (1779)....... 76
Martin v. Mott, 12 Wheaton, 19......... 628
Manro v. Almeida, o Wheaton, 473 (1825)... 294
Mayor, etc, of Georgetown v. The Alexandria
Canal Co. et al., 12 Peters, 91 (1838)... 31o0
MAYOR OF THE CITY OF NEW YORK v.
MILN, 1i Peters, 2o2 (1837)........ 303
Mayor v. Cooper............... 626
Medley, Petitioner, 234 U. S., 260 (189o).... 555
Menendez v. Holt, 128 U. S., 524 (1888).... 553
MERRYMAN'S CASE, x Campbell, 246 (1868). 379
Metropolitan Bank v. Van Dyck, 27 N. Y., 400
(2863)...........................450
Meyer v. The City of Muscatine, I Wallace, 384
(x863)............................ 433
Miles v. United States, o103 U. S., 304 (1880) 482, 499
Miller v. Mayor of New York, 1o9 U. S., 385
(1883)................... 522
Miller v. The United States, 11 Wallace, 268
(1870)................... 425
Milligan Admr. v. Milledge and Wife, 3 Cranch,
220 (18o05)................. 22o0
MILLIGAN EX PARTE, 4 Wallace, 2 (1866)
404, 417.
Minerva, The.................. 58
Minneapolis Railway Co. v. Minnesota, 134 U.
S., 467 (189o0)............... 516
Minnesota.v Barber 236 U. S., 313 (189o)... 544
Minor v. Happersett, 21 Wallace, 262 (1874).. 486
Missouri v. Lewis, zoz U. S., 22 (1879).... 490
Mitchel v. The United States, 15 Peters, 52
(1841)..................... 317
Montgomery v. Henry, 2 Dallas, 49 (278)... 59
Montgomery v. Hernandez, 22 Wheaton, 229 (2827) 276
Montolet v. Murray, 4 Cranch, 47 (8o07).... 21o0
Montault v. United States, 22 Howard, 47 (i85i) 355
Moore v. People of the State of Illinois, 24 Howard, 23 (1852).............. 357
Morgan v. Loui-iana, I18 U. S., 455 (z885).. 528
MORMON CHURCH v. THE UNITED
STATES, 136 U. S., 2 (2889)........... 555
Morris's Cotton, Case of, 8 Wallace, 507 (,869) 421
Mrs. Alexander's Cotton, Case of, 2 Wallace,
404 (1865)................. 423
Mrs. Armstrong's Case, 23 Wallace, 254 (1872) 428
Mugler v. Kansas, 123 U S., 623 (2887).. 524, 630
MUNN v. THE STATE OF ILLINOIS, 94
U. S., 3 (876).................... 515, 655
Murphy v. Ramsey, I4 U. S., 25 (2884)... 499
Murray v. Schooner Charming Betsey, 2 Cranch,
64 (2804).................. 21o
N
Nashville, Chattanooga & St. Louis, Railway Co.
v. State of Alabama, 128 U. S., 96 (1888). 548
Nathan v. The State of Louisiana, 8 Howard,
73 (185o)........................ 335
National Bank of Paducah, 2 Flippin, 61 (1877) 542
Navigation Co. v. Insurance Co., 26 Federal
Reporter, 596 (1886)................. 542
Neal v, Delaware, 2o3 U. S., 370 (288o).. 493, 655
NEIL MOORE & Co. v. THE STATE OF
OHIO, 3 Howard, 720 (1845)....... 327, 332
NEREIDE, THE, 9 Cranch, 389 (1815).... 224
Nesmith et al. v. Sheldon et aL, 7 Howard, 812
(1849)...................... 334
Neves et al. v. Scott et al.. 13 Howard, 268 (1852) 360
New Hampshire v. Louisiana, o208 U. S., 75 (1882) 51o
New Hampshire r'. Vermont, (1779)...... 76
New Jersey Steam Nay. Co. v. The Merchants
Bank, 6 Howard, 344 (1848)...........332
New Jersey v. Virginia, (1784)............74
New Orleans v. Houston, 19 U S., 265 (x886), 524, 629
New Orleans Gas Co. v. Louisiana Light Co., 115
U. S................... 650
New York v. Louisiana, 2o8 U. S., 76 (1882).. 51o
New York v. Massachusetts, (1784)...... 75
New York v. Vermont, (2779)........ 76
NORRIS v. CITY OF BOSTON, 7 Howard,
283 (1849).................. 304
North Carolina v. Temple, 134 U. S., 22 (189o) 555
0
OGDEN v. SAUNDERS, 22 Wheaton, 2x3 (1827) 266
639.
Ohio & Mississippi R. R. Co. v. Wheeler, Black.,
286 (186i).................. 324
Olcott v. Supervisors, z6 Wallace, 678 (2872).. 431
O'Neil v. McKewn, I S. C., 147 (1869)..... 450
O'Reilly v. Morse, 25 Howard, 62 (1853).... 354
OSBORN v. BANK OF THE UNITED STATES,
9 Wheaton, 738 (2824)......... 252, 258
Osborn v. Nicholson, 13 Wallace, 655 (187).. 422
Osborne v. The City of Mobile, 16 Wallace, 479
(1872).................. 437
Osborne v. United States, 91 U. S., 475 (I875). 426
Oswald, administrator v. The State of New York,
2 Dallas, 40ox (1792).......... 59, 631
P
Packet Co. v. Catlettsburg, 105 U. S., 559 (i88I) 518
Padelford's case, 9 Wallace, 53z (1869)........ 427
PARKER v. DAVIS, 22 Wallace, 457 (2870) 451, 463
PASSENGER CASES, THE (Smith v Turner,
Norris v. City of Bostont, 7 Howard, 283
(1849) *.................... 332
ï~~TABLE OF CASES.
785
Patterson v. Gaines, 6 Howard, 550 (1848)... 327
Paul v. Virginia, 8 Wallace, x68.(z868)..... 438
Pearson v. Yeudall, 95 U. S., 294 (2877).... 495
PENHALLOW v. DOANE, 3 Dallas, 57 (x795) 46, 8So
625.
Pennoyer et al. v. McConnaughty, April 20, 1892 533
Pennsylvania College Cases, 23 Wallace, 90o (1871) 431
Pennsylvania et al. v. The Pullman Palace Car
Company............... 558
Pennsylvania Railroad Co. v. Miller, 232 U. S.,
75 (1889)................. 554
Pennsylvania v. Virginia (x779).............. 74
Pensacola Telegraph Co. v. Western Union Telegraph Company, 96 U. S., 2 (1887).. 522, 647
People v. Compagnie Gendrale Transatlantique,
o07 U. S., 59 (882)............529, 655
Permoli v. Municipality No. 1 of the City of New
Orleans, 3 Howard, 589 (2845)............ 334
Perrine v. Chesapeake.& Delaware Canal Co., 9
Howard, 172 (185o)............ 358
Peyroux v. Howard, 7 Peters, 324 (1833).... 32
Philadelphia & Reading Railroad Co. v. Derby,
z4 Howard, 468 (2852)........... 360
Philadelphia Steamship Co. v. Pennsylvania, 122
U. S., 326 (x886)............ 262, 520
Philadelphia and Wilmington R. R. Co. v. Maryland, io Howard, 376 (x850o)......... 356
Phillips v. Detroit, 4 Banning and Arden Patent
Cases, 347 (179)............ 542
Pickard v. The Pullman Southern Car Co., 117
U. S., 34 (x885)................. 520, 655
Pierce v. Carskaden, x6 Wallace, 234 (x867) 424, 654
PIERCE ET AL. v. NEW HAMPSHIRE, 5
Howard, 504 (1847)............ 329
Planters' Bank of Mississippi v. Sharp et al., 6
Howaid, 302 (2848)............ 326
Poindexter v. Greenhow, 124 U. S., 270.... 654
Porterfield's Executors v. Clark's Heirs, 2 Howard, 77 (x844).............. 324
Powell v. Pennsylvania, x27 U. S., 678 (x888) 548, 629
Presser v. Illinois, 116 U. S., 252 (x885).... 482
PRIGG v. COMMONWEALTH OF PENNSYLVANIA, 16 Peters, 539 (842)..... 322
Prohibitory Cases, The, 24 Kansas, 703 (x881). 539
PROPELLER GENESEE CHIEF ET AL. v.
FITZHUGH E TAL., x2 Howard, 443 (x851)
292, 364, 649.
PROVIDENCE BANK v. BILLINGS, 4 Peters,
514 (x830). 222 U. S., 326 (x886)...... 264
Purvear v. Commonwealth, 5 Wallace, 476 (2866) 435
Purviance v. Angus, 1 Dallas, 180o (x786).... 59
R
Railroad Commission Cases, x16 U. S., 307 (1886) 5x6
Railroad Co. v. Earle, 13 Peters, 519 (2839).. 323
Railroad Co. v. Fuller, 27 Wallace, 560 (x873). 439
Railroad Co. v. Johnson, 25 Wallace, 295 (2872) 457
Railroad Co. v. Lockwood, 17 Wallace. 357 (1873) 434
Railroad Co. v. Mississippi, o202 U. S., 240 (188o) 5o2
Railroad Co v. Penistan, z8 Wallace, 5 (2873). 388
Railway Companies v. The Keokuk Bridge Co.,
132 U. S., 372 (1889)........... 537
Ratterman v. Western Union Telegraph Co., 227
U. S., 42x (2889)............ 543, 655
Reckendorfer v. Faber, 92 U. S., 347 (2875).. Â~- 470
Reily v. Lamar et al., 2 Cranch, 344 (18o5)... 2z
Resler v. Shehee, z Cranch, z (x8ox)..... 202
Respublica v. Carlisle, z Dallas, 33 (2778)... 84
Respublica v. De Longchamp, 1 Dallas, IIIx (z784) 83
Respublica v. Molder, z Dallas, 33 (1778)... 84
Respublica v. Molin, 1 Dallas, 33 (1778) -... 84
Respublica v. Terscher, z Dallas, 335 (2788).. 83
Reynes v. Dumont, 23o U. S., 354 (z889).... 553
REYNOLDS v. UNITED STATES, 98 U. S.,
245 (1878).................. 498
Rhode Island v. Massachusetts, 12 Peters, 728, 627,
651.
Rhodes v. Bell, 2 Howard, 397 (1844)..... 323
Richmond, &c., Railroad Co v. Louisa R. R. Co.,
23 Howard, 71 (2852).......... 358
Riddlesburger v. McDaniel, 38 Mo., z38 (z866). 45o
Robbins v. Shelby County Taxing District, 220
U. S., 489 (x886)............... 528
Rose v. Himely, 4 Cranch, 24z (z8o8)..... 222
Ross at al., Executors v. Rittenhouse, 2 Dallas,
i6o (1792)................ 225
Rowan et al. v. Runnels, 5 Howard, 234 (2847), 318, 335
Royall v. Virginia, 1z6 U. S., 572 (1885).. 523, 654
Runyan v. The Lessee of Coster et al., 24 Peters,
122 (2840).............* * 3z4
Rutgers v. Waddington (z784)......... 222
S
Saginaw Gas-Light Co. v. Saginaw, 28 Federal
Reporter, 529 (1886)............ 542
Samuel, The, x Wheaton, 9 (x8z6)....... 233
Sands v. Manistee River Improvement Co, 223
U. S., 288 (2887).............. 520
Sarah, The, 8 Wheaton, 396 (x823)...... 29
Savin, Petitioner, 23x U. S., 267 (189).... 549
Scott v. Negro Ludlow, 3 Cranch, 325 (x8o6).. 20xo
Scott et al. v. Jones, 5 Howard, 343 (2847)... 334
Searight v. Stokes, 3 Howard, 252 (x845).... 327
Seymour v. McCormick, z6 Howard, 48o (2853). 354
Seymour v. McCormick, 29 Howard, 96 (x856). 354
Shelby v. Guy et al., ixi Wheaton, 36z (2826).. 433
Shepherd v. Taylor, 5 Peters, 675 (2832).... 294
Shollenberger v. Brinton, 52 Pa. St., 9 (x866).. 450
Silsby v. Young & Silsby, 3 Cranch, 249 (x806). 2o
Simon Nathan v. Virginia, 1 Dallas, 77.... 8o
Sims v. Hundley, 6 Howard, 2 (2848)..... 38
SLAUGHTER-HOUSE CASES, x6 Wahlace, 36
(1872)................. 457, 629
Slocum v. Mayberry, 2 Wheaton, 2 (28x7)... 222
Smith v. Alabama, 124 U. S., 465 (2887).... 522
SMITH v. TURNER, 7 Howard, 283 (2849) 304, 332
Smith v. The State of Maryland, x8 Howard, 72
(x855)......................**........ 357
ï~~786
TABLE OF CASES.
Snow v. United States, x28 U. S., 349 (1885).. 499
South Carolina v. Georgia (2786) (1876), 93 U. S., 5-76
Springer v. The United States, o102 U. S., 586(x88o) 400
Sprott v. United States, 2o Wallace, 464 (x874). 428
State of Florida v. State of Georgia, 17 Howard,
494 (1854).............. 355, 620
State sex rel. v. Nemaha County, 7 Kansas, 549
(1871).................. 539
State Freight Tax Case, x5 Wallace, 232 (x872) 437, 463
STATE OF GEORGIA v. BRAILSFORD AND
OTHERS, 2 Dallas, 402 (1792).... x68, 631
STATE OF GEORGIA v. STANTON, 6 Wallace, 5o (1867)............. 416
State of Maryland v. The Baltimore and Ohio R.
R. Co., 3 Howard, 534 (1845)........... 328
State of Massachusetts v. Western Union Telegraph Company.............. 558
STATE OF MISSISSIPPI v. PRESIDENT
JOHNSON, 4 Wallace, 475 (x866)..... 45
State of Missouri v. Iowa and Iowa v. Missouri,
7 Howard, 66o (1849). 2o Howard, x (1850) 355
State of New Jersey v. Wilson, 7 Cranch, 164
(18,2).................. 22o0
STATE OF PENNA. v. THE WHEELING &
BELMONT BRIDGE CO. ETAL., 9 Howard, 647 (1850); 23 Howard, 518 (1851); 18
Howard, 421 (x855).................. 361
STATE OF TEXAS v. WHITE, 7 Wallace,
70oo (868)............ 418, 629, 653
State v. Parkhurst, 4 Halstead, 444....... 122
State v. Walruff, 26 Federal Reporter, 278 (x886) 54o0
Stevens v. Gladding, 27 Howard, 447 (1854) Â~ Â~ 355
Stimpson v. Baltimore and Susquehanna R. R.
Co., 2o Howard, 329 (x850)......... 354
Stimpson et al. v. Wilson, 4 Howard, 7o20 (1846) 354
Stone v. Mississippi, 1ox U. S., 824 (1879), 523, 629, 654
Steamship Co. v. Portwardens, 6 Wallace, 32 (1867) 437
Strauder v. The State of West Virginia, 1oo U. S.,
303 (x879)............ 488, 502, 655
Strawbridge v. Curtiss, 3 Cranch, 267 (x8o6). 211, 323
Stuart v. Laird, 1 Cranch, 299 (18o3)...... 215
STURGES v. CROWNINSHIELD, 4 Wheaton,
222 (2829)................. 257
Susannah, The (x784)............. 58
Suydam and Boyd v. Broadnax and Newton, 24
Peters, 67 (2840).............. 325
Sweer's Case, m Dallas, 42 (2778)........ 82
SWIFT v. TYSON, z6 Peters, 2 (1842).... 329
T
Talbot v. Jansen, 3 Dallas, 233 (1795). 2.... 218
Talbot v. Seeman, I Cranch, z (80ox)..... 20o
Talbot v. The owners of Three Brigs, m Dallas
(!784)................. 59, 95
Tappan v. The Merchants' National Bank of
Chicago, 29 Wallace, 490 (1874)...... 536,
Tayloe v. Merchants' Ins. Co. of Baltimore, 9
Howard, 390 (1850)...........359
Telephone Cases, the, 126 U. S., z (x888)... 524
TENNESSEE v. DAVIS, 0zoo U. S., 257 (x879)
463, 500
Terrett v. Taylor, 9 Cranch, 43 (x8s5)..... 22o
TEST OATH CASES (CUMMINGS v. MISSOURI & Ex arte GARLAND)..... 422
TEXAS v. WHITE, 7 Wallace, 700 (2868), 4x8, 629,
653.
Thayer v. Hedges, 23 Ind., 242 (2864)..... 450
The Admiral, 3 Wallace, 6o3 (1865)......... 412
The Alberta, 23 Federal Reporter, 807 (1885).. 542
The Atlanta, 3 Wallace, 425 (1865).......... 4x4
The Baigorry, 2 Wallace, 474 (x864)...... 412
The Banks v. The Mayor, 7 Wallace, 16 (x868) 388
The Bermuda, 3 Wallace 514 (i865).......... 412
The Charming Betsy, 2 Cranch, 64 (2804)... 2x
THE CIRCASSIAN, 2 Wallace, 135 (1864).. 41xx
The Commercial and Railroad Bank of Vicksburg v. Slocumb, 24 Peters, 6o (184o)... 313
The Delaware Railroad Tax Case, 18 Wallace,
206 (1873)................. 388
THE GENESEE CHIEF, 12 Howard, 443
(x851)................. 292, 364
The Gray Jacket, 5 Wallace 342 (1866).... 43
The Hart, 3 Wallace, 559 (x865)....... 412
The James P. Donaldson, 29 Federal Reporter,
264 (2883)......................... 542
The Josephine, 3 Wallace, 83 (1865)......... 422
The Manitoba, 2 Flippin, 241 (1878).......... 542
The Nancy (2776) 48. The Elizabeth (2776) 49, 5o, 62
The Ohio and Mississippi Railroad Co. v.
Wheeler, Â~ Black, 286 (1861)........ 384
THE PASSENGER CASES, 7 Howard, 283
(1849)................... 261
The Patapsco Insurance Co. v. Southgate, 5
Peters, 604 (1831)............. 294
THE PEOPLE OF THE STATE OF NEW
YORK v. COMMISSIONERS OF TAXES,
2 Black, 620 (1862)............ 388
The Peterhoff, 5 Wallace, 28 (z866)....... 4x3
THE PRIZE CASES, 2 Black, 635 (z862)... 384
The Protector, 9 Wallace, 687 (2869)...... 422
The Sea Lion, 5 Wallace, 630 (1866)...... 413
The Slavers, 2 Wallace, 350 (2864)....... 413
The Sloop Chester (1786)......... 60
The State of New Jersey v. The State of New
York, 5 Peters, 284 (1831)......... 270
The State of Rhode Island v. The State of
Massachusetts, 22 Peters, 657 (1838) 3x2.
4 Howard, 591 (1846)........... 312
The Thistle (1776)...............49, 62
The Town of Pawlet v. Daniel Clark et al. 9
Cranch, 292 (815)........... 220, 292
The Venice, 2 Wallace, 258 (1864)....... 412
Thompson v. Rigg, 5 Wallace, 663 (1866)... 449
Thomson, v. Lee County, 3 Wallace, 327 (1863) 433
Thorington v. Smith, 8 Wallace, Â~ (x868),... 422
THURLOW v. MASSACHUSETTS, 5 Howard, 504 (2847).............. 329
ï~~TABLE OF CASES.
787
Tiernan v. Rinker, 1o2 U. S, 123 (t88o).... 517
Tiernan et al. v. Jackson, 5 Peters, 580 (1831). 294
Tilton v. The Schooner, 5 Mason, 465 (1830). 32
Tombigbee Railroad Co. v. Kneeland, 4 Howard, 26 (1846)............... 33
Tomlinson v. Jessup, 25 Wallace, 495 (1872).. 43x
Town of East Hartford v. Hartford Bridge Co.,
xo Howard, 5x1 (185o)........... 357
Township of Pine Grove v. Talcott, 29 Wallace,
666 (1873)......................... 434
Trader's Bank v. Campbell, 24 Wallace, 87 (x872) 536
Trebilcock v. Wilson, 22 Wallace, 687 (1872).. 444
Trevett v. Weedon (1786)......... 120o, 644
Troy Iron and Nail Factory v. Corning, 24
Howard, 194 (1852)................... 354
TRUSTEES OF DARTMOUTH COLLEGE
v. WOODWARD, 4 Wheaton, 5 1819).. 252
Trustees of the Bank of Cincinnati v. Baldwin,
9 Howard, 261 (x850o)........... 359
Turner, Admnr, v. Enrille 4 Dallas 7 (1799).. x82
Turner v. Bank, 4 Dallas, 8 (1799)...... 182
Turner v. Fendall, 1 Cranch, 217 (1801).... 202
Turrill v. R. R. Co., I Wallace, 491 (1863)... 435
Turnpike Co. v. State, 3 Wallace, 21o (1865).. 429
Tyler et al. v. Tuel, 6 Cranch, 324 (x8xo)... 2o0
U
United States v. Anderson, 9 Wallace, 56 (1869) 420
United States v. Andres Castillero, 2 Black. 18
(2862)................... 384
United States v. Arredondo, 6 Peters, 709... 627
United States v. Black, 128 U. S., 40 (x888).. 548
United States v. B. & O. R. R. Co., 17 Wallace,
322................... 654
United States v. Brig Eliza, 7 Cranch, 223
(x812)................... 20xo
United States v. Cities of Philadelphia and New
Orleans, 2x1 Howard, 6zo (2850)...... 355
United States v. Clark. 3t Federal Reporter,
72o (1887)............... 542
U. S. v. Coolidge, t Wheaton, 415 (x816)... 66
United States v. Coombs, 22 Peters, 72 (1838). 309
United States v. Crosby, 7 Cranch, 115 (2812). 226
United States v. Cruikshank, 92 U. S., 542 (1875) 487
655.
UNITED STATES v. FISHER et al, 2
Cranch, 358 (1804)............. 22
United States v. Gooding, 12 Wheaton, 460
(1827)................... 294
United States v'. Hamilton, 3 Dallas, 17-2o0
(1795).................... 182
United States v. Harris, 2o5 U. S. (1882).... 482
United States v. Hudson, 7 Cranch, 32 (2822). x66
United States v. Hughes, 13 Howard 1 (x851). 355
United States v. Insurance Co.'s, 22 Wallace,
103 (1874)................. 428
United States v. Judge Lawrence, 3 Dallas, 42
(1795).................... 232
U. S. v. JUDGE PETERS, 5 Cranch, z5
(28c9)............ 46, 54, 223, 625, 635
UNITED STATES v. KAGAMA, zz8 U. S,
375 (s885)................... 522, 554, 65z
United States v. Keehler, 9 Wallace, 83 (1869). 420
United States v. Laleb, 12 Peters, 1 (x838)... 309
United States v. Lane, 8 Wallace, 185 (1868).. 422
United States v. Lee, zo6 U. S., 196 (1882)... 509
United States v.* Maxwell Land Grant Co., 26
Federal Reporter, Ix8 (x886) 12 U. S., 325
(1887)................... 540
United States v. Morris, 14 Peters, 464 (1840). 316
United States v. Nichol............ 276
U. S. v. Nine Cases of Silk Hats, 17 Howard,
97 (1854)............... 36o
United States v. Ravara, 2 Dallas, 297 (2793). 216
United States v. Reading, 18 Howard, x (1855) 355
United States v. Reese, 92 U. S, 225 (2875), 486, 655
United States v. Reynes, 9 Howard, 127 (1850o) 355
United States v. Richard Peters, District Judge,
3 Dallas, 121 (1795)............ x81
United States v. Schooner Peggy, Cranch, 0o3
(x80x)................... 202
United States v. Schurz, 2o2 U. S. -Reports, 407
(1880)................. 246, 634
U. S. v. Sixty seven Packages of Dry Goods, 27
Howard, 85 (2854).................. 360
United States v. The American Bell Telephone
Company 128. U S., 315 (1888).......552
United States v. Waddell, 222 U. S., 76 (2884). 494
United States v. Weed, 5 Wallace, 62 (x86 ).. 43
United States Bank v. Deveaux, 5 Cranch, 62
(1809)................ 27
Upton v Tribilcock, 92 U. S., 45 (2875).... 470
V
Van Allen v. Assessors, 3 Wallace, 573 (2865), 388, 435,
655.
Van Brocklin v. State of Tennessee, 117 U. S., z52, 654
Van Horn v. Dorrance, 2 Dallas, 304 (1795), 72, 279
Van Hewson v. Kanouse, 23 Mich., 303 (1865). 450
Van Ness v. The Mayor of the City of Washington, 4 Peters, 232 (1830).......... 294
Van Rennselaer v. Kearney, ixx Howard, 297 (x850o) 433
Vanstaphorst v. The State of Maryland, Minutes
of the Supreme Court......... 159, 63x
Veazie Bank v. Fenno, 8 Wallace, 533 (1869). 388
Verges v. Giboney, 38 Mo., 458 (s866)..... 450
VIDAL ETAL v. GIRARD'S EXECUTORS,
2 Howard, 127 (1844).......... 324
VIRGINIA COUPON CASES, 224 U. S., 270
(2884)................... 523
VIRGINIA, EX PAR TE. zoo U. S., 313-339
(1879).................. 490
Virginia v. Rives, loo U. S., 3x3 (x879).. 489, 502
Vrow Dorothea, 2 Rob., 246 (1754) **.... * 9
ï~~738 TABLE
W
WABASH RAILWAY CO. v. ILLINOIS, 118
U. S., 557 (1886).......... 261, 333, 655
Walker v. Board of State Harbor Commissioners,
27 Wallace, 648 (1873)............... 434
Walker v. Sauvinet, 92 U. S., 90 (x875).-.. 495
Walker v. Whitehead, 16 Wallace, 324 (1872).. 431
Walker v. Taylor et al., 5 Howard, 65 (1847). 309
Walling v. Michigan, 216 U. S., 446 (1885) 521, 655
WARE v. HYLTON, 3 Dallas, 199 (1796).. 269
WARING v. CLARKE, 5 Howard, 441 (1847), 292, 332
Watson, et al. v Mercer et ux., 8 Peters, 88 (x834) 270
Webster v. Cooper, z4 Howard, 488 (1852) 300, 433
Webster v. Reid, ii Howard, 437 (1850).... 359
WELTON v. THE STATE OF MISSOURI, 91
U. S., 275 (1875)................. 517
West v. Barnes et al., 2 Dallas, 40ox (1791).. "16o
Western Union Telegraph Co. v. Massachusetts,
125 U. S., 30 (1888)............ 522
Western Union Telegraph Co. v. Pendleton, 122
U. S., 347 (2887).............. 522
WESTERN UNION TELEGRAPH CO. v.
TEXAS, 165 U. 8., 460 (1881)....... 522
Western Union Telegraph Co. v. Massachusetts,
225 U. S., 530 (1887)........... 522
Western Union Telegraph Co. v. Commonwealth
of Pennsylvania, 228 U. S., 39 (1887)... 543
West River Bridge Co. v. Dix et al., 6 Howard,
507 (1848).................. 334
West River Bridge Co. v. Town of Brattleboro
et al., 6 Howard, 507 (1848)........ 334
WESTON v. CHARLESTON, 2 Peters, 449 (1829),
252, 654.
White v. Hart, 23 Wallace, 646 (187x)... 422, 430
OF CASES.
Willamette Iron Bridge Co. v. Hatch, 225 U. S,
1 (1887)................ 523
Willard v. Tayloe, 8 Wallace, 557 (1869)... 449
Williams v. Ash, 2 Howard, 2 (1843)......323
Williams v. The Suffolk Insurance Company, 13
Peters, 415 (2839)........... 32o
Williams and others v. Amroyd, 7 Cranch, 423
(x813)......................... 224
Williams v. United States, 2 Howard, 290 (1843) 286
Williamson et a. v. Barrett, 23 Howard, 0ox (1852) 364
Wilmer v. The Smilax, 2 Pet. Ad., Dec., 295 (28o4) 32
Wilson v. Daniel, 3 Dallas, 402 (1798).... 182
Wilson v. Lenox, z Cranch, 194 (1803)..... 209
Wilson v. Mason, 1 Cranch. 45 (80x)..... 202
Wilson v. Speed, 3 Cranch, 283 (18o6)..... 2o10
Wilson v. Rousseau, 4 Howard, 547 (1846)... 354
Wilson v. Simpson, 9 Howard, 209 (2850)... 354
Wills v. Allison, 4 Heiskell (Tenn.), 385 (1871). 450
WILSON v. BLACKBIRD CREEK MARSH
CO., 2 Peters, 245 (1829)......... 261
Windsor v. McVeigh, 93 U. S., 274 (1876)... 426
Winans v. Denmead, 15 Howard, 330 (2853).. 354
Winchester v. Hackley, 2 Cranch, 343 (1804).. 21o
Wiscart v. Dauchy, 3 Dallas, 321 (1795).... 182
Woodruff v. Parham, 8 Wallace 123 (2868). 437, 527
WORCESTER v. GEORGIA, 6 Peters, 515 (2832) 269
642, 651.
Wright v. Noel, 16 Kansas, 602 (2876)..... 539
Y
Yeaton v. Bank of Alexandria, 5 Cranch, 49 (1809) 209
Yick Wo v. Hopkins, 2x18 U. S., 352 (1885) 513, 655
York County v. Central Railroad, 3 Wallace,
107 (1865)...................... 434
ï~~INDEX.
PAGE
AARON BURR, Trial of........ 2, 2x8
Abandoned Property Act....... 420, 427
Act, Judiciary, of 1789.........a28, et se.
Twenty-fifth Section of......... 245
Active, Sloop, Case of........... 2, 53, 213
Adams, John Quincy, Commission issued to... 233
Admiralty: Causes, Colonial........ 27, 28
Courts of Vice............. 29, 32
" " " Judges of.... 30, 33, 34, 35
State Courts of............ 44, 47
Congressional Committees of Appeal... 49
Court of Appeals in Cases of Capture.. 55, 61
Jurisdiction of Federal Court in, 31, 180, 213,
222, 226, 292, 332, 364
" " above Tide Waters... 332, 365
" " On Mississippi.......... 332
" " On Great Lakes.... 292, 364
" " Prizes in Civil War. 384, 4z-4x5
Admission of Women to Bar.......... 439
Aliens, Rights of................ 2x
Right of United States to exclude..... 524
Passengers, State tax on, void....... 5x9
Alien and Sedition Laws.......... 2
Amendments of Constitution, Effect of Prohibition in................. 334
First Ten, Operation of...... 266, 499, 515
XI........... 80, 257, 506, 523, 555
XIII, XIV, XV. 439,457, 485, 486, 493, 497, 522
Anarchists, Chicago................... 5x5
Anniversary, Centennial, of Supreme Court... 582
Appeals, Court of, in Cases of Capture.. 42, 55, 61
Congressional Committees of....... 49
Appellate Jurisdiction of Supreme Court, 24, 235,
282, 221, 244, 245, 247, 257, 309, 359, 376, 42I, 422
Arrest, Protection from military......... 429
Arnoux, William H., Hon., Addresses of, at Judiciary Centennial............... 582, 593
Articles of Confederation........... 52, 69
Article III of tonstitution, relating to Judiciary,
23, 24, 107-126
Objections to............ 207 e seq.
Defence of............. 26 et seq.
Scope of, as stated by Jay....... 126, 127
Attainder, Bills of............. 422, 423
Attorneys General of the United States.... 20, 355
PAGE
BALDWIN, HENRY, Sketch of....... 279
Bank of United States, Power to establish.. 249
Legality of, denied........... 289
Circulation, Tax on by Congress valid.. 388
State tax void............ 249, 388
Bankers' Lien, nature of................. 553
Bankruptcy, Priority of United States as a creditor, 212
Power of States as to Statutes of.. 257-266, 332
Bar of Supreme Court...... 20o, 239, 259, 337, 556
Admission of Women........... 439
Barbour, Philip P., Sketch of.......... 296
Bayard, Samuel, Sketch of........... 572
Belligerents and Neutrals........ 224, 384, 42a
Bigamy, A Crime against the United States. 498, 499
Bills of Attainder.............. 422, 423
Bills of Credit, States cannot Issue....... 262
Bank bills issued by State Bank are not. 263, 305
Binney, Horace, Associate Justiceship offered to,
325, 343
Argument in Girard Will Case...... 325
Black, Jeremiah S., Sketch of.......... 567
Blair, John, Sketch of............. 49
Blatchford, Samuel. Sketch of.......... 527
Blockade, Right of President to instituteure belli,
384, 387, 411, 412
Boundaries, Controversies as to, between States,
66, 75, 31o, 355
Bradley, Joseph, Sketch of........... 464
Brewer, David J, Sketch of............. 538
Bridges, Whether or not unauthorized obstructions
of navigable streams, 262, 304, 366, 32o, 362,
429, 438, 522
Brown, Henry, B., Sketch of.......... 541
Bryce, Professor, Views of.......... 15, 442
Burr, Aaron, Trial of............ 2. 228
Butler, William Allen, LL.D., Address of, at Judiciary Centennial.............. 596
CALDWELL, ELIAS B., Sketch of...... 573
Campbell, John A., Sketch of....... 350
Captured and Abandoned Property Act... 420, 427
Carriers, Common............... 434
Carroll, Charles, of Carrollton, Letter of, concerning Supreme Court............. 264
739
ï~~740
INDEX.
PAGE
Carroll, William T, Sketch of......... 575
Cases, Number of, disposed of by the Court... 558
Causes, Removal of.............. Soo
Catron, John, Sketch of............ 299
Centennial Anniversary of Supreme Court.... 581
Challenge, Right of, as to Jurors......... 515
Chancery proceedings, Assault on, by Maclay.. z33
Doctrines of, Lord Camden, adopted... 324
Charitable uses, Cyfres.......... 324, 555
Charter, Inviolability of............ 253
Not to be extended by implication.... 305
Chase, Salmon P, Sketch of.......... 389
On Legal Tenders.......... 424, 454
On Indestructibility of States....... 419
Death of................. 47!
Chase, Samuel, Sketch of........... 287
Impeachment of............ 3, 208
Cherokee Nation, Status of....... 267, 324, 511
Chinese, Rights of, Exclusion of...... 52, 513
Christianity, Girard's will not opposed to.... 326
Circuit Courts, Establishmept of...... 136-260
First Duties performed by........ 155
Letter of Jay, as to duties in....... 257
Citizens, Controversies between, and States... 270
Of States................ 221
Free Negro, not a............366
Citizenship, under XIV. Amendment...... 486
Of Corporations......... 313, 3x4, 384
In District of Columbia, no...... 21xo, 316
Civil Rights................ 489, 496
Civil Service, Law as to political assessments.. 506
Civil War, Outbreak of the........... 383
Cleveland, Ex-President, Address of, at Judiciary
Centennial................. 590
Clifford, Nathan, Sketch of........... 395
Coin, Contracts payable in........... 443
Collision and Jettison, Cases of......... 364
Color Blindness................ 548
Colored Men, Rights as Jurors... 489, 492, 493, 497
Colonial Admiralty Courts... 29, 33, 35, 38, 49, 55
Grievances............. 35, 36, 39
Efforts at Redress......... 39, 40, 42
Comity, Inter-State.............. 313
Commerce Clause, 259, 261, 303, 304, 329, 331,
333, 361, 363, 435, 436, 517, 519, 521, 544
Commercial Jurisprudence, Doctrines as to, Disregard of State Decisions.... 316, 329,431, 433
Commissioners, Judges as, of Pensions..... 263
Common Carriers............... 434
Common Law, Jurisdiction at, in Federal Courts,
x66, 222
Confederate Contracts............. 421
Cotton.................. 42x
Government, how far de facto,.. 420, 421, 428
Notes.................. 422
Confederation, Articles of,... 52, 65, 66, 69, 82, 87
Confiscation, Act of............ 426, 427
Of property of Mormon Church..... 555
Congress, Continental.......... 2, 36, 128
Committees of, Exercising judicial powers,
49, 55, 180o
Committees of, on organizing Judiciary.. x28
PAGE
Of the United States, Powers of....
To regulate commerce, 259, 262, 303, 304,
329, 33t, 361, 363, 436, 519, 544
To punish contempt.......... 504
To issue legal tenders......... 502
Totax.................... 278
To regulate slave traffic............. 317
To supersede decree of Court...... 362
To establish bankrupt laws....... 212
To establish a bank........ 249, 251
Constitutional limitations and powers of,
must be observed..... 203, 2x3, 215, 427
Congress, Implied Powers of.... 249, 251, 451, 50o2
War Powers of.............. 45!
Natal Day of............... 128
Constitution, Adoption of............ 0o5
Article III., relating to Judiciary, 23, 24, 87, Io6
Formation of.............. 87-2o6
Framers of................ 25
Opposition to........... o07 et sq
Defence of............ x6 et seq.
Supremacy of............ 213, 215
Construction of, Principles of....... 27!
Contempt, Power of Court to punish for..... 549
Congress, no general power as to......549
Contracts, Charters are............. 253
Municipal law, when a part of... 266, 318, 431
State law impairing obligation of, void, 252,
315, 316, 318, 429, 508, 523
Instances where obligation not impaired,
305, 328, 357, 358, 429
By letter................ 359
"Coin"................. 443
Controversies, between States... 66, 67, 75, 312, 355
Between citizens of different States..
Between citizens claiming lands under grants
of different States........... 221
Corporations, Citizenship...... 313, 314, 360, 384
Rights to sue in Federal Courts...... 313
Grants to, Construction of....... 265, 358
SForeign....................... 438
Taxation of............. 358, 544
Duties of, must be performed....... 553
Stockholders, liability of......... 470
Cotton, as a Subject of Prize.......... 43
Council of Revision, Plan for making the Judges a,
95 et seq.
Courts, Colonial........... 29, 35, 65, 66
Of Appeals in Cases of Capture... I, 49, 55
District, Establishment of.... 129, 131, 136
Circuit, Establishment of....... 236, x60
Limitation of powers of... 203, 221, 222
No common law jurisdiction in Federal, 166, 222
Foreign, Exclusion of...........8
Foreign, Sentences of......... 223, 312
Coxe, Tench, Defence of Judiciary Article... 118
Cranch, William, Sketch of........... "562
Credit, Bills of................ 262
Bills of, what are not.................. 305
Criminal Law, no common law jurisdiction. 166, 222
Ex post acto............ 79, 555
Curtis, Benjamin R., Sketch of......... 345
ï~~INDEX.
741
PAGE
Cushing, William, Sketch of.......... 144
Cy pres Doctrine................ 555
DALLAS, ALEXANDER J., Sketch of.... 56o
Dana, Richard H., Jr., Letter of, as to War
Powers of the Government of the United States, 385
Daniel, Peter V., Sketch of.......... 3ox1
Dartmouth College Case, Inviolability of Charters, 252
Limitation of doctrines of....... 3o5, 3o6
Davis, David, Sketch of................. 403
Davis, John C. Bancroft, Sketch of..........570
Death, by Electricity, validity of laws inflicting
penalty of.........................555
Debates on Federal Judiciary System, 91, 95, o6,
129, 233
Debtors, discharge of............. 257, 266, 331
Decisions, State, disregard of...........316, 433
Defects of Congressional Judicial System.... 82
Defence of Article III., relating to Judiciary, 116 et seq.
Delaware, Constitution of, in conflict with XV.
Amendment.....................493
Departments of Government, whether independent
of each other or not................. 289
Direct Taxes............... 178, 400
Discretion of Executive Officers............311
District of Columbia, citizen of, not citizen of a State, 210
Counties of, not like State........ 316
District Courts, Establishment of...... 129-13x1
Drummers, License tax on, unconstitutional, 518, 544
Duane, Secretary of Treasury, refusal to remove
deposits.................. 295
Due process of law defined...........495
Duties on imports, interpretation of Acts relating to, 36o0
Duvall, Gabriel, Sketch of............233
ELECTIONS, Federal control of...... 492-494
State regulation of......... 492-494
Eleventh Amendment....... 177, 18o, 257, 51to0
Ellsworth, Oliver, Sketch of......... x85
Author of Judiciary Act......... 134
Eminent Domain, Power of...... 266, 334, 554
Enemy, Public, defined.............. 387
Enemy goods, Enemy ships do not make.. 224, 225
Enforcement Acts, Constitutionality of..... 487
Enumeration of Federal judicial powers..... 126
Epochs in History of Supreme Court, First.. 168
Second................. 195
Third.................. 242
Fourth..................288
Fifth.................. 339
Sixth.................. 382
Seventh.................. 440
Equity, Jurisdiction of Courts of........ 324
Evidence, Secondary proof, when admissible.. 309
Exclusive Jurisdiction of Supreme Court.... 135
Executive, Powers of, when binding on Judicial
Departments.......... 289, 310xo, 311
Discretion cannot be coerced..... 3o10, 417
Expatriation, right of, discussed but not decided,
181, 211
Exports and imports defined.......... 520
PAGE
Ex Jost facto laws.......... 79, 484, 555
Extradition, Treaty of x1842, Construction of-. 360, 361
Extra Judicial Duties, declined......... 63
FEDERAL, The Convention..........25, 89
Courts............. 65, x80o, 431
Supremacy........ 212,245, 377, 440
Federalism, Climax of.................502
Federalist, The.................... 119
Federal Judges, Protection of against violence.. 549
Felonies and Piracies, Courts for trial of.. 65
Field, Stephen J., Sketch of............. 406
Address of, at Judiciary Centennial... 698
Fifteenth Amendment..........457, 486, 493, 494
First Amendment...................498
Fishery, Power of State to preserve right of... 357
Florida Land Claims and Titles....... 37, 355
Foreign Courts, Exclusion of.......... 181
Sentences of...................223
Foreign State, Cherokee Nation not a...... 267
Fourteenth Amendm ent.........488, 490, 496
Framers of the Constitution............. 25
Freedom of Locomotion................. 435
Free Negro not a citizen..................367
Freight, Inter-State transportation of, not subject
to State taxation.............. 437
Fugitive Slaves................. 322, 357, 375
Fuller, Melville W., Sketch of........... 534
Remarks of, at Judiciary Centennial... 696
GEORGIA, Defiance of, to decisions of Supreme
Court.....................176, a69
Gerry, Elbridge, Proposal of, to establish a State
Court for Condemnation of Prizes.... 4o
Reasons for not signing Constitution.... o107
Golden Age of Supreme Court......... 242
Governor, of State, suit against, a suit against a
State................... 378
Grants, Public, construction of......... 3o6
Granger Cases, State regulation of charges for stor.
age of grain............ 515, 555
Gray, Horace, Sketch of............ 524
Grier, Robert C., Sketch of............. 343
Griffith, William, Sketch of.......... 574
HABEAS Corpus, Power of Court to issue, 215,
327, 379, 404, 418, 549
Suspension of............. 379
Hamilton, Views of, in relation to Judiciary... 87
Hanson, Alexander Contee, Defence of Judiciary
Article................... 18
Harlan, John Marshall, Sketch of....... 476
Address of, at Judiciary Centennial.... 719
Harrison, Robert H., Sketch of......... 145
Head Money, Tax on Foreign Passengers.... 519
Henry, Patrick, Attack on Judiciary Article... 213
Hitchcock, Henry, Address of, at Judiciary Centennial................. 62o
Howard, Benjamin Chew, Sketch of...... 566
Hunt, Ward, Sketch of................ 467
ï~~742
INDEX.
PAGE
IMPLIED Powers of Congress.. 249, 252, 45', 502o
Immigration, Regulation of.... 261, 332, 513, 519
Impeachments................. 208
Imports and Exports defined.......... 520o
Imprisonment, cannot be inquired into by alien.jurisdiction.. ' "............ 327
Habeas Corpus as a remedy for, 215, 404,
418, 459
Income tax................. 40o
Incompatibility of offices............ 193
Indiana, Controversy as to, between New Jersey
and Virginia................ 74
Indians, not citizens of the United States.... 5 z
Subject to laws governing the Territories. 553
Indians, Cherokees, Not a Foreign State... 267, 51x
Injunction, Powers of Federal and State Courts
as to..................22x, 3o0
Insolvent Laws, State......... 257, 266, 331
Insurable interest, of wife and child in life of husband................... 549
Instructions, illegal, no justification of officer acting under................. 209
Insurrection, is War.............. 387
International Laws..... 82, 83, 224, 225, 384, 412
Inter-State Commerce, 259, 261, 3o3, 304, 329, 332,
437, 514, 517, 520, 521, 541, 558
Intoxicating Liquors, Laws Regulating sale of, 329
524, 547
Iredell, James, Sketch of........... 153
Defence of Judiciary Article....... 8
Dissenting Opinion in Chisholm v. Georgia, 174
JAY, JOHN, Sketch of............ 240
Views of the Constitutional Grant of Judicial Power................. 226
Second nomination as Chief Justice.....9i
Jefferson, Thomas, Observations on Virginia Constitution................ 135
Letter as to Judiciary.......... 2o9
Jettison and Collision, Cases of......... 364
Johnson, Thomas, Sketch of.......... 61
Johnson, William, Sketch of...... -... 227
Judges, Colonial Vice Admiralty........ 33
Of Court of Appeals in Cases of Capture.. 57
As a Council of Revision....... 95 et seq.
Of Supreme Court, Concise Enumeration. 15
Impeachment of............8, 208
Number of, under Judiciary Act......:31
First appointees to Supreme Court.... 238
As Commissioners of Pensions...... 263
Independence of............ 6, 164
No power to compel the decisions of..... 1x8
"The Midnight"................207
Increase in number of......... 298
Judgment, of one State Court conclusive in another
State on merits.............. 32
Judicial System, Defects of, of Continental Congress................8z, 82, 83
Judicial Department, organized...... 135s et seq.
Judicial Duties, Extra, declined........ 163
Judicial Power, Analysis of,-Limitations of, 23,
24, 87-1o5, 126, 335, 4t6
PAGE
To declare an Act of the Legislature void,
20 et seq., 179,203, 229
Scope of, as stated by Jay....... x26, z27
To review Decisions of State Tribunals.. 245
Judiciary Act, 2787........... 28, 234, 245
180ox.................... 206
Repeal of............... 207
Judiciary, Debate up n Article III in Constitution,
Views of Hamilton.........87, 94
Views of Henry............ I13
Views of Madison.......... 88, 16
Views of Lee.............. 209
Views of Marshall........... 115
Views of Mason............ o8
Views of Maclay.......... 129-131
Views of Martin............ 213
Views of Pendleton............14
Report of Committee on Detail.... 99, 2oo
Independence of............ 6, 164
New Jersey Plan for............ 9o
Virginia Plan for............. 90
Hamilton's Plan for............ 94
Jurisdiction, Original.. 23, 24, 120, 235, 202, 270, 378
Appellate, 24, x35, x82, 221, 244, 245, 247,257,
309, 359, 376, 411, 422
Admiralty.. 31, 280, 2x3, 222, 226, 292, 332, 364
Jurors, Colored men, right to serve as. 489, 491, 493, 497
Jury, Trial, Instances of, in Supreme Court. 135, 169
State may regulate............ 495
Right to, inviolable........ 24, 404, 427
KENT, JAMES, Name of, suggested by Wirt
for Supreme Court............ 274
AKES, Admiralty jurisdiction on...... 364
Lamar, L. Q. C., Sketch of........ 530
Land, Claims in California.. -..... 384
Claims in Florida............. 317
Claims in Louisiana...........355
Title to, Lex loci............. 226
Maxwell Grant.............. 540
Law of Nations............. 82, 83, 412
Lee, Richard Henry, Objections to Article on Judiciary................. 1o9
Legal Tenders, Power of Congress as to. 443, 451, 502
Legislation, Contracts to obtain, void...... 360
Lex loci...................226, 434
Liberty, Religious, a matter of State concern.. 334
Lincoln, Levi, Commission issued to....... 233
Livingston, Brockholst, Sketch of........ 229
Liquor Laws, State, regulating sale... 329, 514, 547
Locomotion, Freedom of............ 435
" Lords of Trade"............... 27
Lotteries, Louisiana and Mississippi..... 523, 524
Coupon Bonds............ 506, 507
Lousiana, Land Grants........... 355, 384
Lottery Cases.............. 523
M ACLAV, WILLIAM, Arguments of, on Judiciary Act.............. 29-131
Madison, James, Views of, in relation to Federal
Judiciary................ 87, I6
ï~~INDEX.,
748
PAGE
Mails, States cannot tax the......... 327, 358
Mandamus, Will not lie to control discretion. 310o, 311x
Will lie to compel a ministerial act. x20o, 202, 3o10
Marshall, John, Sketch of........... 195
Views of, on Federal Judiciary..... z 5
Number of opinions delivered by..... 286
Death of................. 303
Review of work of the Court under.... 283
Martial Rule, Cannot exist where Courts are open, 4x8
Martin, Luther, Letter on Federal Convention.. 1z3
Mason and Dixon's Line, Controversy between
Pennsylvania and Virginia......... 74
Mason, George, Objections to National Judiciary. xo8
Matthews, Stanley, Sketch of.......... 482
Mexican Grants, in California.......... 355
Middleton, Daniel Wesley, Sketch of...... 576
Midnight Judges, The............. 20y
Military Commission, Jurisdiction of.... 411, 417
Protection from arrest by......... 429
Miller, Samuel Freeman, Sketch of....... 4ox01
Deathof..................4
Missouri Compromise, Unconstitutionality of... 366
Moore, Alfred, Sketch of............ 189
Mormon Polygamy............. 499, 555
Municipality, Duties of, as to sidewalks..... 36o0
Powers of, to issue bonds in aid of railroads,
539, 555
McKenney, James Hall, Sketch of....... 576
McKinley, John, Sketch of........... 3oo00
McLean, John Sketch of............ 276
NATAL Day of Congress........... 128
National Supremacy... 177, 2x2, x215, 245, 377
Navigation, as part of Commerce........ 309
Obstruction to, a nuisance........ 361
Negro, Free, not a citizen............ 366
Nelson, Samuel, Sketch of.............. 339
Neutrals and Belligerents........ 224, 384, 4x2
New Hampshire Grants............. 77
New Jersey, Plan for Federal Judiciary..... g9o
Prerogatives of Crown vested in, after the
Revolution.................... 319
Nuisance, Obstruction to navigation a........ 36!
OATH of Office, of Justices, form of.... 35
Oaths, Test, Unconstitutional..... 422, 423
Objections to Article in the Constitution relating to
Judiciary............. o107 et seq.
Officers, of United States, Protection of, 31xx, 429, 549
551
Offices, Incompatibility of............ 193
Ohio River, a highway of Commerce regulated by
Congress................. 36!
Opinions, of Statesmen, Jurists and Publicists, of
SupremeCourt............... 14
Organization of Supreme Court......... 138
Original Jurisdiction of Supreme Court.... 24, 135
"Original Packages"....... 329, 331, 544, 558
Otto, William Todd, Sketch of......... 569
Oyster Fisheries, Regulation of.............. 357
PA63
pARDON, Effect of, by the President. 424, 427, 428
Passengers, Tax on, void, 303, 327, 333, 358,
435, 518
Patents, not monopolies................ 354, 435
Right of United States to cancel, if obtained
by fraud........................ 552
Paterson, William, Sketch of.......... 83
Peace of United States, Protection of...... 549
Pendleton, Edmund, Views of, respecting Federal
Judiciary................. 14
Pensions, Judges refuse to perform duties as to.. 163
Commissioner of, Decision of, final... 548
Pennsylvania, Controversy between, and Connecticut.................... 67
Peters, Richard, Sketch of.............. 566
Phelps, Edward J., Address of, at Judiciary Centennial.................. 686
Physicians, License to practice......... 553
Pilotage, Power of States to regulate...... 363
Pinckney, Charles, Views of, as to incompatibility
of offices.................. 192
Pinckney, Charles Cotesworth, Commission offered
to..................... 6z
Pinkney, William.......... 2, 241, 243, 250
Police Powers of the States, 303, 304, 357, 435, 439,
459, 514, 518
Political Questions, not proper subjects for judicial consideration...........335, 415, 417
Polygamy, Acrime against the United States. 498, 499
Children of, right to inherit....... 555
Practice, Regulation of............. z8s
President, Pardon, power of......... 427, 428
Power to establish provisional Courts.. 4o20
Power to institute a blockade..... 384, 387
Proclamation, effect of.......... 412
Power to suspend Habeas Corpus.. ***379
No dispensing power................. 3x11
Independence of......... 289, 4x5, 417
Prize, Instances of.... 49, 180, 222, 384, 414, 415
Prohibition, of Liquor Traffic..............547
Pullman Palace Cars, liability to taxation.... 558
UARANTINE Regulations sustained.... 518
RAILROAD Company, liability for negligence, 360
Subject to Legislative control as to rates.. 5s6
Randolph, Edmund, Objections to Federal Judiciary................. o8
Appointed Attorney General....... 138
Argument in Chisholm v. Georgia * Â~... 171
Randolph, John, Submission of Amendment by,
for removal of Judges............ 208
Rebellion, Date of Suppression of........ 42o
Reconstruction Acts, Opposition to..... 4x5, 416
Partial repeal of............. 425
Era of.................. 484
Rehearing, Right of State to direct, in their own
cases........... -.*. *... 356
cases.....................5
Religious Belief, no justification for crime of polygamy....................... 498
Religious Liberty, a matter of State concern... 334
ï~~744
INDEX.
PAGR
Remonstrances of Continental Congress against extension of Vice Admiralty Jurisdiction... 36
Remedy, Lex Fori must prevail as to..... 312
Removal of Criminal Causes from State to Federal
Courts................... Soo500
Repudiation, Attempts at, by States... 506, 510o, 523
Retrospective Laws, of States, not forbidden. 270, 356
Revision, Council of, Plan for making the Judges a,
95 et seq.
Rights, Civil............... 489, 496
Rule in Shelley's Case............. 359
Rules adopted by Supreme Court.......... 1252
Rutledge, Edward, Commission offered to.... 16z
Rutledge, John, Sketch of........... 143
How long Chief Justice......... 1284
Views of, as to functions of the Judiciary 99
SEAL, of Supreme Court, and of Circuit Court, 252
Semmes, Thomas J., Address of at Judiciary
Centennial................ 659
Sergeant, John, Commission offered to.... 325, 343
Shelley's Case, Rule in............. 359
Slavery, Cases relating to........ 316, 317, 323
Slaves, Contracts relating to, not affected by z3th
Amendment............... 422
Smith, William, Sketch of........... 298
South Carolina and Georgia, Controversies between, 76
Spanish Titles, under Florida Cession...... 355
Stanton, Edwin M., appointment of, as Associate
Justice................... 345
State Admiralty Courts........... 14, 44
Courts, jurisdiction of offences against Election laws................ 555
Courts, prosecutions in, of infractions of law
of nations............... 82
Judiciary, when determinations final, 179,
331, 335, 359, 360
"Legislation, validity of, always presumed. 179
Statutes, repugnant to Constitution, void, 7, 219
Statutes retrospective, not forbidden.. 270, 356
No power to tax agencies of national government...... 249, 252, 327, 358, 388, 443
No power to pass bankrupt laws,.. 257, 266
No power to impair obligation of contracts, 383
No power to regulate commerce...... 259
No power to deny to any the equal protection
of the laws.............. 489
No power to deny right to recover on contracts made outside of its own limits... 35
No power to pass fugitive Slave laws... 322
No power to tax foreign passengers, 261, 332, 436
No power to issue bills of credit...... 262
No power to discriminate against products of
other States.............. 517
Rights, instances of, 85, 86, 264 et s -q., 308, 357
Trials............. 2, 165 et seq.
States, Comity between............. 313
Indestructibility of............ 418
Police Powers of, sustained, 303, 304, 329, 357,
435, 439, 459, 524, 518, 547
Regulation of storage charges for grain.. 55
PAGE
Suits between, Jurisdiction of Supreme Court,
270, 312, 355, 378, 65z
Suits by................. 510
Suits against, 79, 259, 170, 18o, 258, 506, 523, 555
Taxation by, when sustained, 264, 265, 335, 356
Statutes, Local, Construction of......... 434
Public, Judicial notice of......... 314
Story, Joseph, Sketch of............ 234
Strong, William, Sketch of........... 461
Suffrage, Rights of, law granting to men alone, not
void.................. 486, 487
Supreme Court, Establishment of..........
Organization of.... 23, 24. 120, 135, 138, 202
First Session at New York........ 250
First meeting at Washington....... 195
Jurisdiction, original..... 24, 135, 270, 378
Jurisdiction, appellate, 24, 135, 182, 221, 244,
245,.47, 257. 309, 359, 376, 4x11, 422
Conclusive effects of decision of.... 277, 331
Bar of.......... 20, 239, 259, 337, 556
Increase of business of.......... 381
Disregard of State Decisions, 318, 400, 431, 433
Traditions of............... 556
Functions of............... 7
Opinions respecting........... 14
Judges of, Characteristics of...... 16-29
Trial by jury in............. 169
Supremacy of..... 177, 212, 215, 245, 259
Swayne, Noah H., Sketch of.......... 398
TANEY, ROGER B., Sketch of.... 291 et seq.
The Dred Scott decision.........366
Review of decisions, during Chief Justiceship of................ 336
Death of................. 389
Number of Cases under......... 381
Taxation, An incident of State Sovereignty, 265,
335, 356, 543, 558
Direct and indirect.......... 278, 400oo
Of national agencies by States, not permitted,
252, 327, 358, 388, 443, 518, 523, 543
Income tax............... 400
Telegraph, an instrument of commerce, not taxable
by States.............. 522-543
Telephone, The................ 524
Tenders, Legal......... 443 et seq., 451, 502
Territory, Not a State............ 21
Courts of, judgments of, when reviewable.. 359
Test Oaths Unconstitutional....... 422, 423
Testator, Rights of................ 325
Thirteenth Amendment............. 422
Trade, Lords of................. 27
Thompson, Smith, Sketch of.......... 272
Todd, Thomas, Sketch of............ 231
Treason, High, Law of....... 24, 84, 217 et seq.
Treaties, Paramount obligations of,.. 9, 169, 212, 513
Trial by Jury, Constitutional provisions as to,
24, 169, 427, 495
Trials, State.............. 2, 165 et seq.
Trimble, Robert, Sketch of........... 274
Tucker, John, Sketch of.......... 571
ï~~INDEX
745
PAGE
ULTRA Vires, when a contract is not.... 537
Union, National Character of... 9, o, I1
United States, a body corporate......... 83
Priority of, as a creditor in Bankruptcy.. 2x2
Supremacy of.......... 213, 377, 5
War Powers of........... 447
Bonds and notes of, not liable to State taxation................... 388
United States, Bank of, Power of Congress to establish.................. 249
Legality of, denied............ 289
Peace of, Judges to be protected...... 549
VERMONT, Struggle for Statehood. 77, 78
Admission to Union........... 79
Virginia, Plan for National Judiciary...... 9
Coupon Cases............. 523
PAGE
Washington, George, Suggestion by, of Court for
the trial of Prizes............ 41
Approval of the Judiciary Act....... 34
Letters of, to the Judges......... 139
Wayne, James M., Sketch of.......... 28x
Webster, Daniel, Opinion respecting Supreme
Court................. 4
Arguments............ 259, 325, 335
Webster, Noah, Defence of Article relating to the
Judiciary................ 117
Western Insurgents, Trial of........ z65
Wheaton, Henry, Sketch of.......... 563
Whiskey Insurrection........... 66, 167
"White Man," in State Constitution, Effect of XV
Amendment.............. 494
Wilson, James, Sketch of............ 47
Views of, in Debate on Judiciary... 93 st seq.
Wirt, William, Letter of, Concerning the Supreme
Court................. 263
Wisconsin, Defiance of, to the decision of Supreme
Court.................. 375
Wise, John S., Speech of, in reference to Slaughter
House Cases............. 46!
Women, Eligibility of, to office......... 539
Admission to Bar.......... 439
Woodbury, Levi, Sketch of........... 341
Woods, Wm. B., Sketch of.......... 480
Writs of Error, Proper office to issue..... r6o
WAITE, MORRISON R., Sketch of....
Death of.................
Wallace, John William, Sketch of.......
War, includes insurrection...........
Property of resident in hostile territory subject to capture.............
War Powers of the United States......
Washington, Bushrod, Sketch of........
472
534
568
387
4x3
447
z88
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