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While it was recognized that the Articles of Confederation of 1778 formed but a loose compact and had many points of weakness, there was general agreement that the problem of judiciary had been a most troublesome one and had been left in the most unsatisfactory condition. During the preceding half-century of colonial government the patriots had found that the dangers arising from an established judiciary, constituted and controlled by the home government, were among the gravest with which they had to contend. How to place themselves under the proper restraint of judicial institutions without sacrificing any of the essentials of freedom, was a question not easily settled. As to the form of the judicial system they had generally satisfactory experience to guide them; as to jurisdiction, powers and procedure they also had they also had some guiding precedents, though a number of these they could regard only as warnings.

The problem continued to be a subject of active discussion by the statesmen of the period from the Confedera

tion Congress and the Constitutional Convention. The lack of a strong judicial system, comparable in dignity, in power, and in practical usefulness with the legislative and executive branches of the Government, was felt and sincerely deplored by many. Hamilton, Madison and others pointed out the want of this as likely to prove a grievous weakness in the Republic and a possible danger to the permanence of the new republican institutions.

Article IX of the Articles of Confederation of 1778 defined in detail certain powers delegated to Congress. Among these were several relating to judicial affairs: the creation of an admiralty court, the appointment of commissioners or judges to hear and determine boundary and other questions at issue between any of the States and to arrange the procedure therein; and the appointment of commissioners or judges to hear and determine controversies that might arise in regard to land grants. That was the extent to which the Representatives of the Republic, in the third year

of its existence, ventured to go in the assertion of judiciary powers. All else was left to the States individually.

In the Constitution of 1789 the judicial branch of the Government was more firmly established. Sections 1 and 2 in Article III provided for courts for the United States and defined their jurisdiction 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 behaviour, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.

“The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers and consuls, to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party, to controversies between 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."

It was provided that the Supreme Court should have original jurisdiction only in cases affecting ambassadors, public ministers and consuls, and appellate jurisdiction in other cases, and that crimes should be tried by jury and in the States where committed.

But before this conclusion had been reached there was discussion in the Convention that rivalled in vigor, and even in virulence at times, that which had preceded it on the platform, in State legislative chambers, and in

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newspaper columns. Expressed in the simplest form, it was generally considered necessary to establish a judicial system which should take cognizance of all matters of general concern and yet should not in any degree encroach upon State prerogatives. The States were still jealous of their individual freedom, especially in regard to such matters as land, commerce, citizenship and taxation, and their experience as colonies from which they had just emerged made them fearful of the possible encroachments of a strong, centralized authority. On no single subject before the Convention was there a wider or more threatening divergence of opinion than on the judiciary article, but finally, out of this fiery furnace of contention, came an institution that has stood the test of more than a century and has grown in influence. and popular appreciation as the years have gone by.

The judiciary system thus created was patterned upon that with which its founders had been familiar in the colonies and which had been originally derived from England. Simply stated, it consisted of inferior courts with a supreme court of final jurisdiction. But there was in it this essence of originality and divergence from preceding systems: it did not develop from the bottom upward, but the highest tribunal was first instituted, with broad authority over the existing judicial and political State institutions, while the establishment of the

inferior Federal courts was left to the future as occasion might require.

The act by which this system was created was drafted by Oliver Ellsworth, of Connecticut, who subsequently became the third Chief Justice of the Supreme Court. Existing for a century and a quarter substantially as it was planned by Ellsworth, it is scarcely beyond the limits of reason to say, with one of the warmest admirers of its author, that "the whole edifice, organization, jurisdiction, and process was built by him as it now stands." Decided differences of opinion still existed among the members of the Constitutional Convention regarding the strength of this branch of the Government. Hamilton, writing in The Federalist, declared that "the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks." With this view Montesquieu, the great constitutional authority, fully agreed, saying that "the judicial power is next to nothing." On the other hand, Washington, with the clearer vision of the patriot untrammelled by the conventions of legal mind and training, considered "the judicial system as the chief pillar upon which our national government must rest," so writing to James Wilson, whom he, as President, commissioned to be one of the first Associate Justices of the Supreme Court.

In the campaign for the ratification of the Constitution the judiciary articles received most of the criticism. Such men as Elbridge Gerry, Edmund Randolph, George Mason, Richard Henry Lee, and Patrick Henry condemned it unsparingly. The common fear that thereby the general government would more effectually subvert the State government was wrought upon almost to the point of bringing about the rejection of the Constitution.

When, however, the Rubicon was successfully crossed, President Washington at once constituted the Supreme Court by the appointment of John Jay as Chief Justice and John Rutledge, William Cushing, James Wilson, John Blair, James Iredell, and Robert H. Harrison (who declined to serve) as associate justices. The first session of the Court was held in New York City in February of 1790. The Court was removed to Philadelphia in 1791, where it sat for ten years, with the old City Hall as its meeting place. In March of 1801 it was removed to Washington, where it has remained since.

If the National judiciary came into being through storm and stress, the early history of the Supreme Court seemed in a fair way to justify the fears of those who had doubted the wisdom of its creation. Despite its being composed of strong men, it was not a strong power. Comparatively few cases came before it for decision, but in those few it began to give the distinctly Nationalistic interpretation

of the Constitution. In this respect, its work was significant and important in opening the way for the future, in enunciating principles of constitutional interpretation that were largely followed in the succeeding generations. One may concede this without going quite so far as some of the most enthusiastic admirers of the Court, one of whom (Judge Thomas M. Cooley, of Michigan) has said: "The real importance of the Supreme Court was never greater than at first."

But the first decade of the Court's existence was one of much doubt and uncertainty. The judges were not altogether sure of their powers and could not free themselves at once from the influence of the politics of the period in which they had freely participated before becoming justices. It was a time when the politicians or statesmen of that day bivouacked in the chief justiceship on their march from one political position to another."* John Jay sat on the bench as Chief Justice while at the same time serving as Secretary of State and on his famous mission to England, and he resigned from the bench only after he had been elected governor of New York. Oliver Ellsworth held his seat as Chief Justice and also went to France as the United States minister plenipotentiary. John Marshall was both Chief Justice and Secretary of State for a month. At one time the

* John M. Shirley: The Dartmouth College Case and the Supreme Court of the United States, P. 18.

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absence of the Chief Justice on a foreign political mission and of an Associate Justice on the political campaign in his State compelled a suspension of the sittings of the Court for lack of a quorum. It is not surprising perhaps that Chief Justice Jay, after his resignation in 1795, declined a reappointment in 1801 for the reason that he was, he said, " perfectly convinced that it [the court] would not obtain the energy, weight and dignity which was essential to its affording due support to the National Government; nor acquire public confidence and respect, which as the last resort of the justice of the nation it should possess."

In 1801, with the appointment of John Marshall to be Chief Justice, the more definite history of the Supreme Court began. Marshall sat on the bench until he died in 1835, and there is scarcely a dissenting note among students of that period of the history of the country in the verdict that he made the Supreme Court and firmly established the Constitution in respect to its controlling principles. He was a Federalist of uncompromising character and, through his decisions, gave to the Constitution a strong Nationalistic construction that was never afterward successfully disputed. Four great principles were established by Marshall: the right of the Federal Supreme Court to declare void Federal statutes; the right to hear cases in error from State supreme courts; the right of Congress to exercise

Under Marshall's masterly direction, the Supreme Court astounded its warmest supporters and put to rout its severest critics. The problems presented to it were without precedent the settlement of principles of government, rather than the mere administration of justice. Its decisions were striking, sound, and conclusive and when pronounced commanded immediate and complete popular confidence. In its own sphere the Court became no less stable, powerful or efficient than either the legislative or executive branch of the Government. It came to be recognized as the "most august tribunal in the world," and its history in this period fully vindicated the soundness of Washington's opinion concerning its future, expressed more than a quarter of a century earlier.

With the accession of Roger B. Taney to the Chief Justiceship in 1835, however, a period of reaction began. Taney sat on the bench until 1864, and during his time the political complexion of the Court gradually altered as

its personnel changed, until it became wholly Democratic. Taney was second only to Marshall in ability and influence and under his leadership the Court in its decisions leaned toward a stricter construction of the Constitution and an extension of the powers of the States. The precedents of the Marshall period still held, however, and the Constitution as the controlling power of government was firmly maintained.*

Hampton L. Carson, The Supreme Court of the United States: Its History (Philadelphia, 1891); George Bancroft, History of the United States of America (6 vols., New York, 1883–85); James Bryce, The American Commonwealth (2 vols., New York, 1895); J. J. Lalor (ed.), Cyclopedia of Political Science, Political Economy, and of the Political History of the United States (3 vols., Chicago, 1881); George T. Curtis, History of the Origin, Formation and Adoption of the Constitution of the United States (2 vols., New York, 1854); John Fiske, The Critical Period of American History, 1783-89 (Boston, 1888); Alexander Hamilton, James Madison and John Jay, The Federalist: A Commentary on the Constitution of the United States (edited by Henry Cabot Lodge, New York, 1892); Joseph Story, Commentaries on the Constitution of the United States (3 vols., Boston, 1833); Thomas M. Cooley, General Principles of Constitutional Law in the United States of America (Boston, 1880); George Van Santvoord, Chief Justices of the United States (New York, 1854); Henry Flanders, Lives of the Chief Justices of the United States (2 vols., Philadelphia, 1858); W. H. Barnes, The United States Supreme Court (Washington,

1877); John Adams, Works (10 vols., Boston, 1850-56); Daniel Webster, Works (6 vols., Boston, 1853); Benjamin R. Curtis, Memoirs and Writings (2 vols., Boston, 1879); G. Pellew, John Jay (American Statesmen series, Boston, 1890); Samuel Tyler, Memoir of Roger Brooke Taney (Baltimore, 1872); A. B. Magruder, John Marshall (American Statesmen series, Boston, 1885), and Life of John Jay (2 vols., New York, 1833).