tions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

"Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and permanent law of the nation; and, consequently, the theory of every such Government must be, that an act of the Legislature repugnant to the Constitution is void.

"This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society."

The Chief Justice then claims for the judicial department the authority to declare an act of Congress repugnant to the Constitution null and void; and decided that the Act of Congress conferring jurisdiction on the Supreme Court to issue a mandamus, it being an original process, is not authorized by the Constitution, and therefore is null and void. The mandamus was refused on that ground.

He completed his view of the limited powers of the Federal Government, in his opinion in the case of Bank of Hamilton vs. Dudley's Lessees, that the State Courts have exclusive power to construe the Constitution and legislative acts of their respective States. "The judicial department of every Government [he said] is the rightful expositor of its laws; and emphatically of its supreme law."

But where a State law is repugnant to the Federal Constitution, he maintained the supremacy of the Federal judiciary over the State tribunals in cases of constitutional construction brought up on writ of

error.

Such were the settled rules of constitutional construction in the Supreme Court of the United States when Chief-Justice Taney came to preside over its deliberations.

He first took his seat on the bench, at a Circuit Court held in Baltimore, for the District of Maryland, in April, 1836. He had been so long familiar with the practice of Courts in which the grand and petty juries perform functions in the administration of justice, that he was at once, as a judge, prepared to correct what he had observed to be vicious practice. It had been customary, before a grand jury entered upon the discharge of its functions, for the judge, in open Court, to instruct them regarding their duties. He disapproved of this practice. Therefore, in place of the customary charge, he remarked: "He had a few words to say to them, not so much in compliance with the usage which had prevailed, of charging grand juries, of which he disapproved, and would in future dispense with altogether, but more for the purpose giving his reasons for departing from it; and his present charge would necessarily be brief. He thought the Court should enter at once with promptness and

of

industry upon the discharge of its duties, disconnected with all unnecessary forms. The age had passed by which called for particular instructions from the Court; the public mind had become enlightened, and the intelligence of juries was adequate to the discharge of their duties. The District Attorney was ready to counsel them in all matters of law. It was unnecessary that the Court should enter the wide field of jurisprudence, when the attention of the jury would be called to but few infractions of the criminal law of the land." He ever after dispensed with the custom of charging the grand jury. On this occasion, after his preliminary remarks, he advised the jury that it was their duty carefully to examine the testimony laid before them, and find no bill except upon their clear conviction of the guilt of the accused.

In the January Term, 1837, he took his seat for the first time on the bench of the Supreme Court.

The judicial administration of Chief-Justice Taney must be considered as a reaction against the later tendency of that of Chief-Justice Marshall, and a return to the earlier constitutional construction of that great Judge. In the case of McCulloch vs. The State of Maryland, Chief-Justice Marshall was made to swerve from his earlier strictness of construction by the moulding and transforming logical power, aided by the delusive light of the seductive fancy, of Pinkney. The great orator put his own thoughts into the mind

of the Chief Justice without his knowing it, until he made him see in the auxiliary provision of the Constitution, "to make all laws which shall be necessary and proper for carrying into execution" the specific powers granted, powers as original as those they are to carry into execution. And the Chief Justice never afterwards freed himself from this persuasive coercion of that master of the forum.

My chief purpose in this Memoir is to show the influence of Mr. Taney on the working of the Federal Government, in the political system of the United States, both while he was a Cabinet officer and while he was Chief Justice of the Supreme Court. I shall therefore confine my review to his judicial opinions on constitutional questions. At the moment he took his seat on the bench of the Supreme Court, there were pending three cases of great interest, each of them involving the validity of a State law, and the discussion of the relative powers of the State and the Federal Governments. The cases had been discussed in the time of Chief-Justice Marshall, and it was understood that he was of opinion that the State law involved in each was repugnant to the Constitution of the United States. Those who were familiar with the current of judicial decisions while Marshall presided over the Supreme Court, were curious to see, from the decision of these cases, whether that current was to flow in the same channel of construction, under the influence of the new Chief Justice.

The first of these cases is the City of New York vs. Miln. The Legislature of the State of New York had passed a statute, requiring the master of every vessel arriving in the port of New York, under certain penalties, to report in writing, respecting his passengers, within twenty-four hours after his arrival. The question in the case was, whether the requirement of the statute did not interfere with the right of Congress, under the express grant of the Federal Constitution, to regulate commerce.

It had been decided in 1824, by the Supreme Court, in the case of Gibbons vs. Ogden, that a statute of the State of New York, granting to certain persons the exclusive privilege to navigate all the waters of the State with vessels moved by steam, was repugnant to the clause of the Constitution giving to Congress the power to regulate commerce among the several States, and was therefore void. And in 1827, it was decided by the Supreme Court, in the case of Brown vs. The State of Maryland, that an Act of the Legislature of Maryland which required every importer of goods, by wholesale, bale, or package, to take out a license, and pay for it, under certain penalties or forfeitures for neglect, was void; because it was virtually laying a duty on imports, which the States were by the Constitution prohibited from doing, and because it interfered with the power of Congress to regulate