INTRODUCTION TO THE EDITION OF 1923. li that the courts must be shorn of some of their powers. Within a few months the nation has witnessed the spectacle of a Senator of the United States, in a Flag Day address before the American Federation of Labor, denouncing as pure usurpation the action of the Supreme Court in holding legislative acts unconstitutional. That the power is an essential part of the constitutional scheme, that the action of the Court can always be overruled by the people in the method provided by the Fathers (constitutional amendment) and has been so overruled more than once in our history-these facts are overlooked or ignored. To ardent innovators the method of change by the orderly process of constitutional amendment seems too slow and cumbersome, although four amendments were recently enacted within a period of seven years. Upon this problem the words of "The Federalist" are as pertinent as if written yesterday. With persuasive eloquence they refute the charge of "usurpation," point out the necessity of the power vested in the courts and explain why it is a protection to the people rather than a menace. To those who advocate the abolition of the judicial power to declare legislative acts unconstitutional the best single answer is-"read Federalist LXXVIII!" If this defense against hasty and ill-considered action was necessary in 1787 for two million people, mostly of English descent, inhabiting a narrow strip along the Atlantic border, it is no less necessary today for a nation numbering more than a hundred millions, drawn from various races and spread over half a continent. Popular self-government, to be successful, requires that the people enjoying it shall exercise self-restraint. To that end the free people of the United States ordained a written constitution and established a judiciary charged with the duty of preserving that constitution inviolate until the people should see fit, after due and solemn deliberation, to alter it. The problem today, while new in some of its aspects, remains in essence the same-how best to safeguard democracy against perils inherent in its nature. Upon that problem the spiritual descendants of "Cato" and "Brutus" still find their most comprehensive answer in the reasoning of "Publius." For more than a hundred years a very curious and extraordinary controversy has raged over the authorship of some of the papers composing "The Federalist." Of the eighty-five papers, fifty-one are by common consent credited to Hamilton, fourteen to Madison, five to Jay and three to Hamilton and Madison jointly. The authorship of the remaining twelve (numbers 49-58, 62 and 63) has been the subject of heated dispute between partisans of Hamilton and of Madison. It seems unlikely that the question will ever be settled satisfactorily, as the external evidence is hopelessly conflicting and the internal evidence thus far pointed out is far from conclusive. The literature of the subject has become too extensive for brief summarization. The curious reader will find the Hamilton side of the controversy well presented by P. L. Ford in the introduction to his edition of "The Federalist" published in 1898, and the case for Madison ably argued by Professor E. G. Bourne in Volume II of the American Historical Review. Most impressive of all the tributes to the greatness of "The Federalist" has been the deference paid to it in decisions of the United States Supreme Court. From the days of the great Chief Justice John Marshall until the present time these unofficial newspaper essays have frequently been called upon by the highest tribunal of the Nation for help in solving the Nation's problems. And yet, while questions of authorship, text and bibliography have engaged the attention of many writers and been the objects of exhaustive research, no collection of these citations seems ever to have been attempted. An effort is here made to supply the omission. "The Federalist" has been cited in reported decisions of the Supreme Court in the cases enumerated in the following list. The list includes only citations found in judicial opinions. The numerous references to "The Federalist" occurring in reported arguments of counsel have not been listed. INTRODUCTION TO THE EDITION OF 1923. liii Much effort has been expended to make the list complete. However, as the citations are scattered through two hundred and fifty odd volumes of Supreme Court Reports containing more than one hundred and fifty thousand printed pages, and are nowhere indexed, it is quite possible that some have been overlooked. CHARLES W. PIERSON. NEW YORK, January, 1923. Fletcher v. Peck, 6 Cranch, 87, at page 144. (In this case for the first time a statute of a State was held by the Supreme Court to be unconstitutional, the specific objection being that it impaired the obligation of contracts. The case was decided in the year 1810. "The Federalist" is referred to as "the letters of Publius, which are well known to be entitled to the highest respect.") McCulloch v. Maryland, 4 Wheaton, 316, at pages 433-435. (Under the compact embodied in the Constitution a State is without power to tax an instrumentality of the Federal Government. In this case Chief Justice Marshall enunciated his famous doctrine of implied powers.) Houston v. Moore, 5 Wheaton, I, at page 25. (Constitutionality of a State statute dealing with the militia.) Cohens v. Virginia, 6 Wheaton, 264, at pages 418-419. (Supremacy of the Federal judiciary over State courts upon questions arising under laws of the United States.) Martin v. Mott, 12 Wheaton, 19, at page 30. (Validity of fine imposed by judgment of a Court Martial upon a militia man.) Ogden v. Saunders, 12 Wheaton, 213, at pages 304, 306, 329-331. (Validity and effect of State bankruptcy laws. Citations ccur in dissenting opinions.) liv Brown v. Maryland, 18 Wheaton, 419, at page 456. Weston v. City Council of Charleston, a Peters, 449, at pages 469, 477. (Question of power in a State to tax obligations of the United States.) City of New York v. Miln, 11 Peters, 102, at page 133. (Act of New York State Legislature concerning passengers on incoming vessels held valid as a police regulation, and not an infringement on power of Federal government to regulate commerce.) Briscoe v. Bank of Kentucky, 11 Peters, 257, at pages 332-333. (Construction of provision of United States Constitution forbidding States to issue bills of credit. Citation occurs in dissenting opinion of Story, J.) Kendall v. United States, 18 Peters, 524, at pages 643-644. (Mandamus to compel performance by Postmaster-General of a ministerial act. Citation occurs in a dissenting opinion.) Prigg v. Pennsylvania, 16 Peters, 539, at page 616. (Right under Federal law to reclaim a fugitive slave upheld, and interfering State statute declared unconstitutional.) License Cases, 5 Howard, 504, at pages 606-607. (State license laws held not inconsistent with Commerce Clause of Federal Constitution.) Planters' Bank v. Sharp, 6 Howard, 301, at page 319. (State law held unconstitutional as impairing the obligation of contracts.) Luther v. Borden, 7 Howard, 1, at pages 53, 54, 70, 77. (Case deciding that question which of two rival governments in the State of Rhode Island was the legitimate one was for the determination of the political department of government |