the exist

ing Con

stitution.

The provisions of the Constitution relating to the Judiciary of the more perfect Text of union form the subject-matter of the third Article, the material portions of which are Sect. I. 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.

Sect. 2. 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 two or more States; 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.

In all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all the other cases before mentioned, 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.

com

Thus was accomplished the 'object of the Constitution', which, according to Story's the measured language of Mr. Justice Story in Martin v. Hunter (1 Wheaton, 304, ments 329), decided in 1816, 'was to establish three great departments of government; (1816). the legislative, the executive, and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them.' To this admirable statement Mr. Justice Story, a distinguished citizen of the State of Massachusetts, might have added from the constitution of that State, which is to-day the oldest of all the written constitutions of a body politic, 'to the end, it may be a government of laws, and not of men', which the great Chief Justice Marshall took occasion to repeat in the leading case of Marbury v. Madison (1 Cranch, 137, 163), decided in 1803, his first opinion on a question of constitutional law.

Union

States

law.

But the government of the Union, as well as the government of each of the States, Both the was to be a government of laws in a very peculiar sense; for not merely the men and the invested with government were to be subject to laws, and the people composing the indiviUnited States and each one of them were to be subject to laws, but the United States dual and the States themselves were to be subject to laws and the latter to judicial process. subjected In express words, the Constitution, ratified by the people of each State and thus made to the the Constitution of each as it was the Constitution of them united as States, was to be the supreme law alike of the Union and of the States, and only those Acts of Congress and those constitutions of the States and the statutes of the States were to be valid if they were, on the one hand, made in pursuance of the Constitution, and if, on the other, they were not inconsistent with its terms. Neither the legislative nor the executive department was to decide this question of repugnancy, inasmuch as the Congress and the President, although in different degrees, were part of the lawmaking power, and therefore should not pass upon their own acts. The judiciary, distinct from each and having no part in framing laws, but with jurisdiction coextensive with the legislative and executive Departments of the Union, was to determine

Extent of the Fede-‹ ral Jurisdiction.

Provision

State dis

preme Court.

the question whenever it should be raised in a case involving one or the other of these branches, to the end that, it may be a government of laws, and not of men'.

Because of the extension of the judicial power of the United States to all cases arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority', and of the provision that the Constitution, Laws, and Treaties when so made shall be the supreme Law of the Land', the judges of the Supreme Court and of the inferior courts of the United States were necessarily bound by their terms, and likewise the judges of the States, although, to prevent any doubt on this question, they were specifically declared to be 'bound thereby, any Thing in the Constitution or Laws of any State to the Contrary Notwithstanding'. But in pursuance of this intention on the part of the framers of the Constitution, that the government should indeed be one of laws, not of men, it was provided inter alia that the judicial power of the United States should extend not merely to cases of the kind specified, but to Controversies to which the United States shall be a party; to Controversies between two or more States; between a State and citizens of another State '.

The Government of the Union is not above law, as it was subjected to the law for inter of the Constitution, and no act of the General Government or any branch thereof putes. is valid unless it be made pursuant to the Constitution of the United States. It was Original naturally contemplated that disputes would arise as to the lawful exercise of sovereign jurisdiction of powers on the part of the Union, and it was therefore provided that the judicial the Supower should extend to controversies to which the United States might be a party. The States of the Union had had, as colonies of Great Britain, differences of opinion among themselves, and it was foreseen that, in the more perfect Union of the Constitution, the States composing it might likewise have differences of opinion. Therefore, the judicial power of the Union was to extend to such controversies and apparently to controversies between a State and citizens of another State'. But, given the dignity of the States and this extraordinary extension of power to them as such, it' was properly provided that, in all cases to which a State should be a party, the Supreme Court of the United States should exercise original jurisdiction.

Necessity for the

judicial settle

It was necessary that the judicial power of the more perfect Union should extend to controversies between and among the States, if such were to be adjusted, as they had renounced the power which free, sovereign, and independent States possess, to enter into any Treaty, Alliance, or Confederation'; or, without the conState dis- sent of Congress, to enter into any Agreement or Compact with another State, or putes. with a foreign Power; or engage in War, unless actually invaded, or in such imminent

ment of

inter

Danger as will not admit of delay'. In consideration of the renunciation of the right to resort to war, the Union guaranteed to every State thereof 'a Republican form of Government', and agreed to protect each of them against invasion'. Between diplomacy, whether it be renounced or whether it collapse, and the outbreak of war, there is only a court of justice, and the delegates of the free, sovereign, and independent States of America, in conference assembled at Philadelphia in the summer of 1787, wisely interposed between diplomacy and war a Supreme Court of justice. In the century and more which have elapsed since the creation of the more perfect Union and the establishment of its Supreme Court, a State and citizens of another State have been in litigation. Controversies between the Colonies, which they had been unable to settle, have been decided by the Supreme Court of the Union

upon the request of one or other of them as States. That is to say, controversies of an extremely acute, difficult, and complicated nature, arising before and since the creation of the Constitution and the establishment of its court, have been decided by due process of law, inasmuch as the American system contemplates ' a government of laws, and not of men'.

of the

The government of the more perfect Union was to go into effect on March 4, 1789. Inception On the Ist day of April of that year a quorum of the House of Representatives was Federal present; on April 6 a quorum of the Senate, and the day thereafter the Senate took judiciary up as its first business the organization of the judiciary, which apparently its members (1789). considered the most important task in which it could take the initiative. The House of Representatives entered upon a discussion of duties on imports, a matter of the first importance and which as a money bill could only originate in that branch of the legislature. Of the Senate committee to consider the judiciary, Ellsworth was chairman with seven colleagues, among whom Richard Henry Lee of Virginia had moved the Declaration of Independence in the Continental Congress and Messrs. Patterson of New Jersey, Strong of Massachusetts, Bassett of Delaware and Few of Georgia had been members of the Federal Convention, in which Oliver Ellsworth himself had played a leading and, it may be said, a dominating rôle. On September 24 the measure, known as 'An act to establish the judicial courts of the United States', was signed by President Washington.

preme

It was provided in this act, commonly known as the judiciary act, prepared Judiciary Act of chiefly by Ellsworth and in whose handwriting it still exists, that the Supreme Court 1789. of the United States should consist of a Chief Justice and five Associate Justices, The Sufour of whom should form a quorum; that it should hold annually at the seat of Court. government, which was not then determined, two sessions, the first on the first Monday of February, the second on the first Monday of August. Exercising the power vested in the Congress to ordain and establish inferior courts, the Union was, for judicial purposes, divided into thirteen districts, one for each State adopting the District Constitution, one for the territory of Maine, then an outlying part of Massachusetts but Courts. destined to become a State of the Union, and one for Kentucky, then a part of Virginia but already in the process of organization as a separate State; and in each one of these a district court was established with a federal judge, known as the district judge. Two of the thirteen States were not covered by the terms of this act, inasmuch as Rhode Island and North Carolina, in the exercise of their sovereign pleasure, had not as yet adopted the Constitution and become a part of the more perfect Union. Vermont likewise was beyond the scope of the act, inasmuch as that sturdy community, which had refused to be a part either of New York, New Hampshire or Massachusetts, had not yet been admitted as the fourteenth State of the Union upon an equality with the thirteen, which we of America affectionately call the original States.

For purposes of justice, which cannot be confined within the lines of any State, Circuit however powerful and however extensive its boundaries may be, the eleven States Courts, were divided into three circuits, the eastern consisting of the districts of New Hampshire, Massachusetts, Connecticut, and New York; the middle of the districts of New Jersey, Pennsylvania, Delaware, Maryland, and Virginia; the southern of the districts of South Carolina and Georgia; and the judges thereof, known as circuit judges, were, according to the provisions of the act, to consist of any two justices of

Exclusive and original jurisdic

tion of

the Supreme Court.

tion of the Supreme Court.

the Supreme Court, and the district court of such districts', any two of whom should form a quorum, with the proviso that a district judge should not sit on appeal from his decision, although, if a member of the circuit court, he might' assign the reasons of such his decision'. The judges, alike of the Supreme Court as of the district courts, were required to swear or affirm that they would administer justice without respect to persons, and do equal right to the poor and to the rich, and that they would 'faithfully and impartially discharge and perform all the duties incumbent upon them according to the best of their abilities and understanding agreeably to the Constitution and laws of the United States'.

After stating the exclusive jurisdiction of the district courts and the jurisdiction to be exercised concurrently with the courts of the States or of the circuit courts, and stating the jurisdiction of the circuit courts as such, the act provided in its 13th section that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party except between a State and its citizens; and except also between a State and citizens of other States or aliens, in which latter case it shall have original but not exclusive jurisdiction. And it shall have exclusively all such jurisdiction of suits or proceedings against ambassadors or other public ministers or their domestics or domestic servants as a court of law can have or exercise consistently with the law of nations; and original but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers or in which a consul or vice-consul shall be a party.

Appellate Passing from the original jurisdiction with which the Supreme Court was vested jurisdic- because of the national or international importance of the cases or parties involved, the act took up the question of appeals from what may be considered, in relation to it, inferior tribunals, providing that the Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several States, in the cases. hereinafter specially provided for; and shall have power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States'.

Power to

pass on

the validity of legislative acts.

Extension of appellate

tion.

While district and circuit courts were to have exclusive jurisdiction in certain matters and to have 'cognizance, concurrent with the courts of the several States, or the circuit courts', in other cases, it was essential to the success of the more perfect Union that the Supreme Court thereof should ultimately pass upon certain categories of cases arising in an inferior federal court or decided by the court of last resort of the several States involving a federal question. Therefore, the 25th section of the act provided for the re-examination of the decision of the highest court of any of the States in such a case where the decision complained of denied the validity of the act upon which the suit was based.

But as the result of experience it was found advisable to amend the act in 1914, in order that the decision of the Supreme Court could be had in federal questions, even although the decision of the State Court was in favour of the federal contention, inasmuch as the judiciary of the United States should, at the request of either party to the litigation, pass upon and finally decide a federal question, whether it arose in a federal or a State court and whether the decision was against or in favour of that contention. The Supreme Court of the United States should pass upon the supreme law of the land.

for em

In the 35th and final section of the Statute of 1789 it was enacted that the parties Provision could themselves plead and manage their cases or appear by counsel or attorneys ployment at law, that in each district' a meet person learned in the law' should be appointed of coun'to act as attorney for the United States in such district', in order to prosecute'all sel. delinquents for crimes and offences, cognizable under the authority of the United States, and all civil actions in which the United States shall be concerned'. And it Office of Attorneywas further provided in the same section that there should also be appointed a meet General. person, learned in the law, to act as attorney general for the United States . . . to prosecute and conduct all suits in the Supreme Court in which the United States' were concerned, ' to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments' in matters concerning them.

ton's first

Washington, whether as private citizen, soldier, or president, was punctual in Washingall things, and immediately upon signing the judiciary act he proceeded to organize appointthe Supreme Court, sending to the Senate the name of John Jay of New York for ments Chief Justice, and for Associate Justices the names of John Rutledge of South Carolina, (1789). James Wilson of Pennsylvania, William Cushing of Massachusetts, Robert H. Harrison of Maryland, and John Blair of Virginia; for attorney general the name of Edmund Randolph of Virginia, and on September 26 these appointments were confirmed.

ton's

The judiciary was considered the most important branch of the Government Washingof the Union, and it is unquestionably the one which has most amply justified the hopes and expectations of the founders of the Republic, probably because each judicial appointsucceeding President has, it is believed, at least in the case of the Supreme Court, ments. been guided by the sentiments which Washington expressed in a letter, dated July 27, 1789, addressed to his nephew, Bushrod Washington.1

You cannot doubt my wishes to see you appointed to any office of honour or emolument in the new government, to the duties of which you are competent; but however deserving you may be of the one you have suggested, your standing at the bar would not justify my nomination of you as attorney to the federal District Court in preference to some of the oldest and most esteemed general court lawyers in your own State, who are desirous of this appointment. My political conduct in nominations, even if I were uninfluenced by principle, must be exceedingly circumspect and proof against just criticism; for the eyes of Argus are upon me, and no slip will pass unnoticed, that can be improved into a supposed partiality for friends or relations.2

The subject of the judiciary had long been uppermost in Washington's thoughts, and on August 10, before the passage of the judiciary act, he wrote to Madison, then leader of the friends of the Constitution in the House of Representatives, and indeed, it may be said, in the Congress, saying, ' my solicitude for drawing the first characters of the Union into the judiciary is such, that my cogitations on this subject last night, after I parted with you, have almost determined me, as well for the reason just

1 The education of this young and rising lawyer, destined to become a justice of the Supreme Court under the presidency of John Adams, but not under that of Washington, had been looked after by his distinguished uncle, who, it is interesting to note, had entered him in the law office of James Wilson, one of the first five justices of the Supreme Court. It was natural, therefore, that the ward should write asking whether it would be worth his while to solicit the office of attorney in the federal court of this State', and for his uncle's 'advice about the most proper mode of making application'.

2

Jared Sparks, The Writings of George Washington, 1834-8, vol. x, p. 24.