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political parties were organized, hostility to the judicial power of the United States took form and again how President Jackson practically nullified a decision of the Supreme Court, and in one of the most vigorous of messages claimed that each department of the government is empowered to interpret the Constitution to suit itself.1 There was bound to come a time in the history of the country when a test, of some kind, would be made of the limit of legislative power. In 1787, the year when the Constitution was framed, the Court of Conference of North Carolina, with great reluctance, gave a decision in a case involving this issue and pronounced an act of the Legislature unconstitutional, because it took away the right of trial by jury. This conclusion was vigorously assailed, at the time, as destructive of the liberties of the people, but it was to be sustained by a succession of similar decisions. Opposition in North Carolina, like that in Rhode Island the year before3 over the stay laws, grew out of the misconception of the powers of the legislature. In the earlier years of our independence the notion prevailed that the Legislature could do no wrong. This delusion accompanied the transition from the sovereignty of the King to the sovereignty of the people, for the legislature represented the people. The notion of a paramount legislature was easy to the Americans of the revolutionary era. The decision of the North Carolina court, therefore, that an act of the legislature might be unconstitutional, was quite without precedent and laid the foundation of the law of the Constitution itself, namely, that the acts of any department of government must conform to the

1 Veto Message, U. S. Bank, July 10, 1832; Richardson, II, 582. 2 Den D. Bayard and wife vs. Singleton, 1 Martin, McCawley, 42. * In the case of Trevet vs. Weeden. For an account of this case, see Vol. I, p. 268.

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principles of the political system. The decision was contrary to the custom of England, for acts of Parliament were of paramount authority.

That a court of law should presume to set aside an act of Parliament may be said never to have been thought of in colonial times. In England there was no written Constitution by which a statute could be tested, but in America the case was widely different. Here, as Mr. Justice Patterson said, eight years later than the North Carolina decision, "Every State in the Union has its constitution reduced to written exactitude and precision." And he gave a definition of a constitution, one of the earliest made by an American jurist, that it is "the form of government delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established." Legislatures, he declared, are the creatures of the Constitution. "It is their commission; therefore all their acts must be conformable to it, or else they will be void. The Constitution fixes limits to the exercise of legislative authority and prescribes the orbit within which it must move; * * it lies at the foundation of all law and is a rule and commission by which both legislatures and judges are to proceed; the judiciary in this country is not a subordinate but a co-ordinate branch of the government."

The national Constitution, and the State constitutions which preceded it, in establishing a judiciary and vesting it with power to decide finally in all cases of law and equity and to construe its own jurisdiction and also that of the legislative and the executive, created a precedent in government. When it is remembered that the American judiciary, as Justice Paterson defined it, began at the time of the Revolution, as it were but yesterday,—it

1 Vanhorn's Lessee vs. Dorrance, 2 Dallas, 304; (1795.)

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seems strange that the world waited so long for so useful an institution. But the American judiciary was contemporaneous with the establishment of popular government. Such an institution was impossible as long as sovereignty was supposed to reside only in the Crown. As soon as the Revolution terminated, the judiciary, as conceived in the American system of government, became a necessary and resulting organization. That the understanding of the nature and scope of the judiciary was vague at the time of the Revolution is evident from an examination of the first State constitutions. Though

tolerably exact and clear in their legislative and executive provisions, these were vague and indefinite in their provisions for the judiciary, and it is impossible to obtain from them, alone, a correct idea of the practical character and jurisdiction of the various American courts. But this omission proved highly advantageous in the end, for the courts were left quite free to define their own jurisdiction, and this they speedily did, as in Rhode Island and North Carolina.

The

It was apprehended by opponents of the Constitution that the establishment of a dual political system would produce endless discord and controversy between the States and the Federal government.2 A case soon arose. constitution of Georgia of 1777 did not forbid its legislature to pass an act of attainder and confiscation. On the fourth of May, 1782, the legislature passed an act banishing certain persons from the State, declared them guilty of high treason and confiscated their property. The question was whether the legislature could pass such an

1 For an account of them see my Constitutional History of the American People, 1776-1850, Vol. I, Chapters II, III, IV, V.

2 This is discussed by Hamilton in the Federalist, Nos. LXXXI, LXXXII, LXXXIII.

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act. The Supreme Court of the United States, before which the question came, handed down a decision defining the difference between laws passed by the individual States, during the Revolution and before the adoption of the Federal Constitution, and laws passed after its adoption.1 The issue was in every way important for it involved the relative authority of the two systems of government, the State and National. At this time, 1800, the opinion generally prevailed that the Supreme Court of the United States could not declare an act of Congress unconstitutional, but the Court itself had made no decision on this point. It was a question, whether the legislature of Georgia, in the face of the silence of the State constitution on the subject, could assume the judicial function and issue a decree of banishment and confiscation. Justice Paterson held that to authorize the Supreme Court to pronounce any law void, "it must be a clear and equivocal breach of the Constitution, not a doubtful and argumentative application;" and Justice Cushing was of the opinion that the Supreme Court of the United States possessed the same power as that of Georgia to declare the law void, but thought that the exercise of the power unwarrantable, and agreed with Paterson that the right to confiscate and punish must belong to every government, and, as it was within the judicial power by the constitution of Georgia it naturally as well as tacitly belonged to the legislature. Thus the Georgia act was sustained by the Supreme Court of the United States, because it was sustainable under the constitution of Georgia on the ground that a State constitution in force before the inauguration of the national government was to be construed by its own provisions.

The functions of the judiciary and its co-ordinant rank 1 Cooper vs. Telfair, 4 Dallas, 14.

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in our system of government were clearly defined by ChiefJustice Marshall in 1803.1 He laid down the principle that it is the province and duty of the judiciary to say what the law is. The co-equal rank of the judiciary with the executive and legislative had been asserted and, in part, admitted, he said, at the time of making the national Constitution. That the judiciary, in cases of doubt where two laws conflict with each other, should be paramount in determining which should prevail, was practically a new doctrine, but one necessarily springing from the concept of democracy in America, that the original supreme will of the people had organized the government, had assigned to different departments their respective powers and had defined their boundaries by a written constitution: "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 law, disregarding the Constitution, or, conformedly 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." Thus the very existence of a supreme written law implies paramount functions in the court to determine whether an act of the legislature is repugnant to the Constitution.

The court therefore exercised this paramount function because the Constitution is a paramount law, otherwise, as Marshall said, a written constitution which "we have deemed an improvement on political institutions" would be reduced to nothing, and there would exist no means by which to interpret the ultimate will of the sovereign body. Having declared this ultimatum, the court could go no further, for it could not execute its own decrees, but must depend upon the executive, and possibly upon 1 Marbury vs. Madison, 1 Cranch, 137. (1803.)