In speaking of the nature and functions of the Supreme Court and the action it should take in the present case, Mr. Chief Justice Taney said: But whether this Court can be required or authorized to hear an appeal from such a tribunal, and give an opinion upon it without the power of pronouncing a judgment, and issuing the appropriate judicial process to carry it into effect, is a very different question, and rests on principles altogether different. The Supreme Court does not owe its existence or its powers to the Legislative Department of the Government. It is created by the Constitution, and represents one of the three great divisions of power in the Government of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independent of the other in performing its appropriate functions. The power conferred on this court is exclusively judicial, and it cannot be required or authorized to exercise any other.1 Jurisdiction After quoting the first section of Article III of the Constitution, vesting Appellate the judicial power of the United States in the Supreme Court, and the last clause of the same Article, providing that "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," the Chief Justice thus continued, in language peculiarly appropriate to the purposes of the present essay: The existence of this Court is, therefore, as essential to the organization of the government established by the Constitution as the election of a president or members of Congress. It is the tribunal which is ultimately to decide all judicial questions confided to the Government of the United States. No appeal is given from its decisions, nor any power given to the legislative or executive departments to interfere with its judgments or process of execution. Its jurisdiction and powers and duties being defined in the organic law of the government, and being all strictly judicial, Congress cannot require or authorize the court to exercise any other jurisdiction or power, or perform any other duty. Chancellor Kent says: "The judicial power of the United States is in point of origin and title equal with the other powers of the government, and is as exclusively vested in the court created by or pursuant to the Constitution, as the legislative power is vested in Congress, or the Executive power in the President." I Kent. Com., 209-291, 6th ed. See also Story Const., pp. 449-450.2 After stating the elevated and indeed the unique position which the judicial power occupies in the American system of government, the Chief Justice proceeded to discuss the reason for the creation of this power. Thus: The reason for giving such unusual power to a judicial tribunal is obvious. It was necessary to give it from the complex character of the Government of the United States, which is in part National and in part Original Jurisdiction Federal where two separate Governments exercise certain powers of sovereignty over the same territory, each independent of the other within its appropriate sphere of action, and where there was, therefore, an absolute necessity, in order to preserve internal tranquility, that there should be some tribunal to decide between the Government of the United States and the government of a State whenever any controversy should arise as to their relative and respective powers in the common territory. The Supreme Court was created for that purpose, and to insure its impartiality it was absolutely necessary to make it independent of the legislative power, and the influence direct or indirect of Congress and the Executive. Hence the care with which its jurisdiction, powers, and duties are defined in the Constitution, and its independence of the legislative branch of the government secured.1 The Chief Justice supports his contention by a passage from the 39th number of The Federalist written by James Madison, in which he says that the decision is to be made impartially and that every precaution is to be taken in order to secure this impartiality, because, to quote his exact language, some such tribunal (as the Supreme Court) is clearly essential to prevent an appeal to the sword, and a dissolution of the compact." Upon this statement, taking the passage quoted from Mr. Madison as a point of departure, the Chief Justice thus continues: 66 2 It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government: its powers defined, and limited, and made strictly judicial, and placed therefore beyond the reach of the powers delegated to the Legislative and Executive Departments. And it is upon the principle of the perfect independence of this Court, that in cases where the Constitution gives it original jurisdiction, the action of Congress has not been deemed necessary to regulate its exercise, or to prescribe the process to be used to bring the parties before the Court, or to carry its judgment into execution. The jurisdiction and judicial power being vested in the court, it proceeded to prescribe its process and regulate its proceedings according to its own judgment, and Congress has never attempted to control or interfere with the action of the court in this respect.3 It will be observed that, in this passage, the Chief Justice refers to the original jurisdiction of the court, and that his remarks are strictly limited. to this portion of its jurisdiction; for, while it is true that, in the exercise of its original jurisdiction, the Supreme Court does not compel a State to appear before it nor, hitherto at least, by force compel the execution of a judgment against a State, the Supreme Court can and does, in the exercise of appellate jurisdiction, compel the presence of individuals before it and 1117 U. S., Appendix, pp. 700-1. The Federalist, 1802, Vol. i, p. 259. Court may Individuals States to Appear does likewise compel the execution of its judgment against individuals by The the amount of force required to secure obedience to its mandates. After Compel saying that an inferior court, in which the judicial power is vested but from but not which an appeal lies to the Supreme Court, can only be a judicial tribunal authorized to render a judginent, finally deciding the rights of parties. litigant unless appealed from, and upon which execution may be issued to carry the judgment into effect, the Chief Justice goes on to say that "Congress cannot extend the appellate power of this Court beyond the limits prescribed by the Constitution, and can neither confer nor impose on it the authority or duty of hearing and determining an appeal from a Commissioner or Auditor, or any other tribunal exercising only special powers under an act of Congress; nor can Congress authorize or require this Court to express an opinion on a case where its judicial power could not be exercised, and where its judgment would not be final and conclusive upon the rights of the parties, and process of execution awarded to carry it into effect." The Chief Justice finally insists that it is not only inherent in judicial power to decide a question finally, but also that execution shall issue to carry the judgment into effect, and that, if the holding of the court be not final in first instance, or upon appeal, and if it can not be executed, it is not an exercise of the judicial power in the sense of the Constitution. Thus, he says: The award of execution is a part, and an essential part of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties, unless Congress should at some future time sanction it, and pass a law authorizing the court to carry its opinion into effect. Such is not the judicial power confided to this Court, in the exercise of its appellate jurisdiction yet it is the whole power that the Court is allowed to exercise under this act of Congress.1 In the concluding passage of this opinion, which can not be too often recommended and read, the Chief Justice calls attention to the fact that an attempt on the part of the Congress or of the government to invest the courts of the United States with the exercise of power not properly included in the grant of judicial power, would be an attempt on the part of the Gov- Sovereignty ernment to infringe upon the sovereignty of the States creating the Union, which reserved to themselves and their people the powers not directly or indirectly delegated to the United States. Thus, Mr. Chief Justice Taney 117 U. S., Appendix, 702. of States Protected Separation of Powers Finality of the Court's Decree said in the last opinion which he was destined to write as Chief Justice of the Court over which he presided: The Constitution of the United States delegates no judicial power to Congress. Its powers are confined to legislative duties, and restricted within certain prescribed limits. By the second section of Article VI., the laws of Congress are made the supreme law of the land only when they are made in pursuance of the legislative power specified in the Constitution; and by the Xth amendment the powers not delegated to the United States nor prohibited by it to the States, are reserved to the States respectively or to the people. The reservation to the States respectively can only mean the reservation of the rights of sovereignty which they respectively possessed before the adoption of the Constitution of the United States, and which they had not parted from by that instrument. And any legislation by Congress beyond the limits of the power delegated, would be trespassing upon the rights of the States or the people, and would not be the supreme law of the land, but null and void; and it would be the duty of the courts to declare it so. For whether an act of Congress is within the limits of its delegated power or not is a judicial question, to be decided by the courts, the Constitution having, in express terms, declared that the judicial power shall extend to all cases arising under the Constitution.1 After referring to the separation in England of the judicial power from the legislative and executive, he thus concludes: These cardinal principles of free government had not only been long established in England, but also in the United States from the time of their earliest colonization, and guided the American people in framing and adopting the present Constitution. And it is the duty of this Court to maintain it unimpaired as far as it may have the power. And while it executes firmly all the judicial powers entrusted to it, the Court will carefully abstain from exercising any power that is not strictly judicial in its character, and which is not clearly confided to it by the Constitution.2 In In re Sanborn (148 U. S., 222, 226), decided in 1893, the Supreme Court had occasion to recur to its holding in the Gordon case, and in so doing it referred with approval to Mr. Chief Justice Taney's opinion written for the court in that case. It is therefore unnecessary to state the facts in In re Sanborn, but a passage from the unanimous opinion of the Court is quoted as showing that that tribunal, upon reconsideration and argument, insisted upon the finality of decision as essential to judicial power. Thus, Mr. Justice Shiras, in speaking for the court, said: Such a finding is not made obligatory on the department to which it is reported certainly not so in terms, and not so, as we think, by any necessary implication. We regard the function of the Court of Claims, in such a case, as ancillary and advisory only. The finding or conclusion reached by that court is not enforceable by any process of execution issuing from the court, nor is it made, by the statute, the final and indisputable basis of action either by the department or by congress. In the leading case of Marbury v. Madison (1 Cranch, 137, 177), decided in 1803, which will later be considered at length, Mr. Chief Justice Marshall said: "It is emphatically the province and duty of the judicial department to say what the law is;" and to decide the conflict between competing rules of law is "of the very essence of judicial duty." Some striking examples of the nature of judicial power have already been stated in the English cases on this subject, and, incidentally, in passages quoted from decisions of the Supreme Court. As, however, the success of the great experiment-for the Supreme Court, without an exact model, was an experiment was due to the fact that, in the exercise of judicial power, it has kept not merely departments of the General Government within the meed of power granted them by the Constitution, but also keeps the States of the Union themselves within their orbits, it is advisable in this connection to state the reason for and to show the process by which the Supreme Court of the United States, through the exercise of judicial power, necessarily restrains the acts of the departments of the General Government and of the States within those limits which the States themselves prescribed in the Constitution. 1 2 There are two passages from the Constitution to be considered in this connection. The first, to be dealt with later, extends the judicial power 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." The second declares "this Constitution and the Laws of the United States," made as in the first passage, "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." It will be observed that, while the Constitution is the supreme law of the land, the laws of the United States are only to be considered supreme and binding if they are made in pursuance of the Constitution, for it might be attempted to pass laws which were not in pursuance of that instrument. In this latter case they are void, because the grant is to make laws in accordance with, not inconsistent with, the Constitution. The intention of the framers to have the judicial power pass upon and determine these questions is evident in extending it to the Constitution, to the laws of the United States, and to the treaties, which are likewise laws, made under the authority of the United States, and by requiring judges in every State to be bound 1 Art. III, Section 2, of the Constitution. 2 Art. VI of the Constitution. |