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 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. (Chief Justice Marshall in Marbury v. Madison, 1 Cranch, 137, 177-178, decided in 1803.)

A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiry and decision? It seeks to restrain a state from the forcible exercise of legislative power over a neighbouring people, asserting their independence; their right to which the state denies.

The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned. It savours too much of the exercise of political power to be within the proper province of the judicial department. (Chief Justice Marshall in Cherokee Nation v. State of Georgia, 5 Peters, 1, 20, decided in 1831.)

In council, the king had no original judicial power, 1 Ves. sen. 447. He decided on appeals from the colonial courts, settled boundaries, in virtue of his prerogative, where there was no agreement; but if there is a disputed agreement, the king cannot decree on it, and therefore, the council remit it to be determined in another place, on the foot of the contract, 1 Ves. sen. 447. In virtue of his prerogative, where there was no agreement, 1 Ves. sen. 205, the king acts not as a judge, but as the sovereign acting by the advice of his counsel, the members whereof do not and cannot sit as judges. By the statute 20 E. 3, ch. 1, it is declared, that "the king hath delegated his whole judicial power to the judges, all matters of judicature according to the laws," 1 Ruff. 246; 4 Co. Inst. 70, 74; he had, therefore, none to exercise: and judges, though members of council, did not sit in judicature, but merely as his advisers. .

If judicial authority is competent to settle what is the line between judicial and political power and questions, it appears from this view of the law, as administered in England and the courts of the United States, to have been done without any one decision to the contrary, from the time of Edward the Third. The statute referred to, operated like our constitution to make all questions judicial, which were submitted to judicial power, by the parliament of England, the people or legislature of these states, or congress; and when this has been done by the constitution, in reference to disputed boundaries, it will be a dead letter if we did not exercise it now, as this Court has done in the cases referred (Mr. Justice Baldwin in State of Rhode Island v. State of Massachusetts, 12 Peters, 657, 739-748, decided in 1838.)

to.

A motion has been made by the counsel for the defendants to dismiss the bill for want of jurisdiction, for which a precedent is found in the case of The State of Rhode Island v. The State of Massachusetts. It is claimed that the court has no jurisdiction either over the subject-matter set forth in the bill or over the parties defendants. And, in support of the first ground, it is urged that the matters involved, and presented for adjudication, are political and not judicial, and, therefore, not the subject of judicial cognizance.

This distinction results from the organization of the government into the three great departments, executive, legislative, and judicial, and from the assignment and limitation of the powers of each by the Constitution.

The judicial power is vested in one supreme court, and in such inferior courts as Congress may ordain and establish: the political power of the government in the other two departments.

The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction. Nabob of Carnatic v. The East India Co., 1 Vesey, Jr., 375-393, S. C., 2 Id. 56-60; Penn v. Lord Baltimore, 1 Vesey, 446-7; New York v. Connecticut, 4 Dallas, 4-6; The Cherokee Nation v. Georgia, 5 Peters, 1, 20, 29, 30, 51, 75; The State of Rhode Island v. The State of Massachusetts, 12 Ib., 657, 733, 734, 737, 738. (Mr. Justice Nelson in Georgia v. Stanton, 6 Wallace, 50, 71, decided in 1867.)

The position and rank, therefore, assigned to this Court in the Government of the United States, differ from that of the highest judicial power in England, which is sub

ordinate to the legislative power, and bound to obey any law that Parliament may pass, although it may, in the opinion of the court, be in conflict with the principles of Magna Charta or the Petition of Rights.

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 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 tranquillity, 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. (Chief Justice Taney in Gordon v. United States, 117 United States, 697, 700-701, decided in 1864.)

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. (Chief Justice Taney in Gordon v. United States, 117 United States, 697, 701, decided in 1864.)

The legal supremacy of the constitution is essential to the existence of the state; the glory of the founders of the United States is to have devised or adopted arrangements under which the Constitution became in reality as well as name the supreme law of the land. This end they attained by adherence to a very obvious principle, and by the invention of appropriate machinery for carrying this principle into effect.

The principle is clearly expressed in the Constitution of the United States. "The Constitution," runs article 6, "and the laws of the United States which shall be made in pursuance thereof shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." The import of these expressions is unmistakable.

To have laid down the principle with distinctness is much, but the great problem was how to ensure that the principle should be obeyed; for there existed a danger that judges depending on the federal government should wrest the Constitution in favour of the central power, and that judges created by the States should wrest it in favour of State rights or interests. This problem has been solved by the creation of the Supreme Court and of the Federal Judiciary (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, 8th edition, 1915, pp. 154-155.)

CHAPTER XVIII

POWERS OF THE SUPREME COURT

Determination of Constitutionality

IN settling the jurisdiction of the Supreme Court, the draft of the Constitution as it left the hands of the Committee of Detail provided—in the 3d section of its 11th article, that "the Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States." That the court should possess and that it should only exercise judicial power was the intent of the framers of the Constitution, as plainly indicated by the following passage from Mr. Madison's Notes:

Doc. Johnson moved to insert the words "this Constitution and the " before the word "laws."

Mr. Madison doubted whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature. The right of expounding the Constitution in cases not of this nature ought not to be given to that Department.

The motion of Doc'. Johnson was agreed to nem: con: it being generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.

And, that there might be no doubt on this point, Mr. Madison moved that the phrase "the jurisdiction of the Supreme Court" should be stricken and replaced by the words "Judicial power," which, as Mr. Madison records, was agreed to nem: con:

The framers of the Constitution were clear in their minds as to the function of the Supreme Court. The Government of the Union as well as the Union itself, owes its existence to the Constitution, and that instrument is at once the source and measure of power which these United States can lawfully exercise. Laws in accordance with it are constitutional, laws inconsistent with it are unconstitutional, whether they be laws of the Congress, constitutions or laws of the States of the Union.

To determine these questions is important, often difficult, and as delicate as difficult. The power to do so must be lodged somewhere. The legis lature can not decide whether its act is proper, because so to do would subordinate the Constitution to its creature. The executive can not decide

'Documentary History of the Constitution, Vol. III, pp. 626, 627. Session of August 27th.

finally, although he may exercise a veto upon legislation, because to do so would subordinate the Constitution to his will or pleasure. The framers of the Constitution, therefore, confided the determination of these questions. to the judicial power by extending it "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." And, that there might be no doubt upon this fundamental question, they provided, in Article 6, that "This Constitution and the laws of the United States 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, anything in the constitution or laws of any State to the contrary notwithstanding.”

Upon this section two observations may be made at this time: first, the Constitution is supreme, an equality only shared by the laws of the United States made in pursuance thereof and by treaties of the United States; second, that the judges of the States, in interpreting laws, are to be bound by the supreme law of the land.

No authority need be cited for the statement that the interpretation of a written instrument is a judicial question. The colony was bound by its charter, and all acts of the colony or colonists in excess of the charter as authoritatively interpreted, were void. The Constitution was to be the charter of the erstwhile colonies, now States of the Union, and all acts in excess of the powers, directly or indirectly granted to the Government of the Union, were to be null and void. In the case of the colony, the King in Council decided; in the case of the Union, the Supreme Court of the States.

Powers

It was therefore essential that the judicial power should not be associated in the labors of the executive or legislative branch. The judges should not be members of the proposed but unadopted Council to revise the laws of the States, nor should they be members of an advisory council to the executive; for they could not be expected to pass upon the actions of one or the other in a spirit of detachment, if they had been directly, or, indeed, indirectly, concerned with either. Therefore, the judges should hold the scales of jus- Purely tice firmly in their hands, lest the legislative or executive should tip the balance against the Constitution. The functions of the judges were to be and to remain judicial, and the judicial power, therefore, was to stand separate and apart from the legislative and the executive branches, which, in contradistinction to the judiciary, can be called the political branches of the Government.

In the exercise of their respective powers, the legislative and the executive could not be subject to the judiciary, because the exercise of a right depends upon the body possessing it. It may decide wisely or unwisely, but,

Judicial

Political Contrasted with Judicial Powers

having the power to decide, it necessarily must determine when it shall or shall not make a use of this power. The function of the judiciary can only be to determine, not the wisdom or the folly of the exercise of power, but whether the power exercised is or is not, in an appropriate case, within the power expressly or impliedly delegated by the Constitution to the Government of the Union.

If the question is political, the judicial power will not pass upon it, as the legislative and executive branches of the Government are vested with its exercise. If, however, it is claimed by the legislative or executive to be political, whereas in fact it is not, the judicial power extends to it, inasmuch as the legislative and executive departments of the Government can only exercise political, not judicial power; and even if the question be political, the judiciary must needs examine it in a proper and specific case, in order to determine whether it is within or without the grant of power. It was to be expected that cases of this nature would arise. They have frequently arisen, and can best be analyzed and defined by decisions of the Supreme Court of the United States.

We may accept in the abstract the separation of judicial from political functions; but it is only through the concrete case that the line of demarcation, existing in theory, is rendered visible in fact. A few, therefore, of the many cases involving this question, will be considered, in order that the reader may frame for himself the definition of political power and draw the line between judicial power, on the one hand, and legislative and executive power, on the other.

In Foster v. Neilson (2 Peters, 253), decided in 1829, the Supreme Court had occasion to consider the question of international relations, the conduct of which is confided by the Constitution to the President, with the advice and consent of the Senate. A treaty thus made is, by the Constitution, part of the supreme law of the land. As a law, the judicial power is extended to it, but only in the sense of interpreting it and applying it to a concrete case of a justiciable nature. The propriety of making the treaty depends upon the discretion of the President and of two-thirds of the Senators present during its consideration, in whom the treaty-making power is vested.

The facts in the case are very complicated, and for present purposes it may be said that the plaintiffs claimed a large tract of land lying in Louisiana, about thirty miles east of the Mississippi River and in the possession of the defendant under a grant of the Spanish Governor, confirmed by the King of Spain. The defendant, admitting the grant, claimed that it was null and void in that the land in question was situated in territory which, before the grant, had been ceded to France and by France to the