he continued, "that gives the power to the judiciary of declaring the law and constitution of a State repugnant to the Constitution of the United States and therefore null and void. No express grant, no fair instruction, contains it, and the States never designed so to impair their sovereignty as to delegate this power to the Federal judiciary.' But they have

65, 85, 129, 147, 227, 294, 310, 337, 346, 361, 449. Kentucky (1819), Kentucky Bank Tax v. Bank of United States, Niles' Register, xv, 436; XVI, 56. Kentucky (1820-1824), Occupying Claimant Law Case, Niles' Register, XXI, 404 S. J., Eighteenth Congress, first session, .p. 183. Georgia (1810), Fletcher v. Peck (Yazoo claims), 6 Cranch, 87. For discussion in Virginia legislature over the decision of McCulloch v. Maryland, and resolutions to create a tribunal to decide such cases, see Niles' Register, XVII, 289, 311-315, 447. As a result of the case of Cohens v. Virginia, the legislature of Virginia passed resolutions declaring "that there is no rightful power" "in the Federal judiciary to arraigir the sovereignty of a Commonwealth before any tribunal but that which resides in the majesty of the people." Niles' Register, XIX, 211, 340-341, 417-418; XXI, 404. The legislature of Ohio, in conse quence of the decision of the United States circuit court in the above-cited bank case, passed a series of resolutions indorsing the "Virginia and Kentucky resolutions of 1798 and 1800," declaring their right to tax the bank, and protesting against the doctrine that the political rights of the separate States, and their powers as sovereign States may be settled and determined in the Supreme Court of the United States, so as to conclude and bind them in cases contrived between individuals and where there are no one of them parties direct." Niles' Register, XIX, 339-341; ibid., XXI, 342–343. The legislatures of New Hampshire and Massachusetts replied maintaining a contrary view, and declaring the jurisdiction of the court and that the preservation and due exercise of this power is essential to the peace and safety of the Union." Niles Register, XX, 313; XXI, 404. The legislature of Kentucky passed in the early twenties, repeatedly, resolutions "remonstrating and protesting" against the decision of the United States courts concerning the "occupying claimant law." One of these declared the decision an "infringement of the sovereignty of the State" and requested their Senators and Representatives “to secure the passage of a law requiring the concurrence of two thirds of the court in all cases involving the validity of a law of any State or an increase in the number of judges." S. J., Eighteenth Congress, first session, p. 183; Niles' Register, XXI, 406. In 1829 the legislature of Virginia passed the following resolutions: Resolved, That the Constitution of the United States being a federative compact between sovereign States, in construing which no common arbiter is known, each State has the right to construe the compact for itself." They declared the tariff acts unconstitutional. Am. An. Reg., Local Hist., p. 131. See also resolutions of South Carolina, Georgia, and Alabama of this same period; ibid., pp. 136-138, 140–142, 147. No. Am. Rev., XXXI, 487. 156. See resolutions of the legislature of Delaware in 1833, in reply to Carolina, declaring that the Constitution established the Supreme Court for the settlement of controversies between the United States and the respective States. S.J., Twentysecond Congress, second session, 157-158. Post, par. 177. In 1859 the legislature of Wisconsin, after the Supreme Court, in Ableman v. Booth, 21 Howard, 506, declared a law of the State unconstitutional, passed resolutions in which a "positive defiance is urged as the rightful remedy." Lalor, 1, 162; Landon, pp. 239-240. Other references, see Story, I, pp. 261, note 3; 272, 281, note 1; 282, note 1. Niles' Register, XLIII, Supplement.

Post, pars. 148, those of South

1 Mercer of Maryland said in the Federal Convention of 1787: "I disapprove of the doctrine that the judges as expositors of the Constitution have authority to declare a law void. Laws ought to be well and cautiously made and then be uncontrollable." Elliot, v, 429. Upon the rejection of the motion to give to Congress the power of negativing such laws as were unconstitutional, Gouverneur Morris pointed out that this power would rest with the judiciary. Elliot, v, 321. See Bryce for comment on this remark, 1, 257. See also Roger Sherman's remarks, Elliot, v, 321. Marshall in the Virginia convention asserted the same principle. Elliot, 11, 553. For origin of the practice of the judiciary declaring legislative act void, consult the following: Brinton Coxe, Judicial Power and Unconstitutional Legislation, Parts 11-IV in passim; James B. Thayer, Har

assumed it, and to counteract the evils which must result from this assumption a responsible tribunal of appeal should be provided." "Is it not," he inquired, "equally the duty of Congress to declare the opinion of the Federal judiciary null and void in every case where a majority of Congress might deem it repugnant to the Constitution?" 1 The resolution was repeatedly considered, but was finally laid on the table.2

(3) Another method for the decision of all questions of constitutional power was suggested by Senator Davis of Kentucky, in 1867. It was "that the Constitution should be so amended as to create a tribunal with jurisdiction to decide all questions of constitutional power that shall arise in the Government of the United States and all conflict of jurisdiction between it and the State governments," the tribunal to consist of one member from each State, appointed by the State, to hold his office during good behavior, and a majority of the whole number of the tribunal to be necessary to make a decision. In 1871 Senator Davis introduced a similar amendment specifying more in particular over what questions the tribunal should have jurisdiction and providing for the details of the procedure and composition of the tribunal. Among other duties imposed upon this body, was that of opening and counting the votes of the electors of the President and VicePresident. The decisions of the Supreme Court sustaining the constitutionality of most of the reconstruction acts probably called out this proposition.

78. SUMMARY OF THE PROPOSITIONS RELATIVE TO THE

JUDICIARY.

As we review the various propositions that have been considered in the preceding pages, we see that since the eleventh

vard Law Review, vII, No. 3; Brooks Adams, Atlantic Monthly, November, 1884; C. B. Elliott, The Legislature and the Courts, Political Science Quarterly, v, 224; W. W. Willoughby, The Supreme Court of the United States, Chapter v; also Story, Chapter IV, with notes. For list of statutes declared void by Federal courts, see Davis, Appendix to the Report of the Decisions of the Supreme Court of the United States, 131 U. S., CCXXXV et seq. See Coxe's criticism of this list, chapter II.

Annals of Congress, Seventeenth Congress, first session, pp. 80-81. Holmes offered, as an amendment to the proposition, one for the removal of judges on address of Congress. See ante, par. 71.

A resolution was introduced in the legislature of Maryland in 1831 for the decision of the constitutionality of State laws by the Senate of the United States and for the con currence of two-thirds of the Senate to declare any State law unconstitutional. Niles' Register, XXXIX, 357. For amendment introduced in 1846, taking away this power from the Federal Government, see ante, par. 76, p. 158.

amendment has been secured, there has been no considerable movement to alter the provisions of the Constitution relative to this department. The few attacks made in the early years of the present century were either the outgrowth of party hos tility to the political complexion of the judiciary, which was strongly Federalist, or the expression of the spirit of States rights, which viewed with alarm the nationalizing tendency of the decisions of the Supreme Court under the leadership of John Marshall. No great dissatisfaction has been felt with the judiciary, and hence there has been a general tendency to retain the present system, with such changes as can be effected by law. In recent years there have been one or two attempts to increase the number of judges, in order to decrease the amount of work required of the judges of the Supreme Court, but inasmuch as the number of judges is fixed by law and not by the Constitution, there is no need of an amendment to effect this change, as is shown by the law recently passed by the Fifty-first Congress for the creation of new courts and judgeships. The last attempt to change the judiciary by means of an amendment indicates that there is at present a tendency to increase rather than to restrict the jurisdiction of the Federal courts.

For estimate of the influence of Marshall, see article by Henry Hitchcock in Constitutional History as Seen in American Law, chapter II; Bryce, 1, 267, 384-385.

CHAPTER V.

PROPOSED AMENDMENTS AFFECTING THE POWERS OF THE GOVERNMENT.

79. DIVISION OF POWERS BETWEEN THE STATES AND THE GENERAL GOVERNMENT.

In the formation of the Government, one of the most difficult things proved to be the setting aside the powers of the General Government from those of the States. Historically, there were many powers which had been exercised by the colonies, and later by the States, in which the English Government and the Continental Congress and the Congress of the Confederation had never shared. The principle tacitly adopted was that the States should retain all not expressly delegated to the Union. Then it was agreed that the grant of power to the Federal Government should be expressed in a few broad phrases. No attempt was made to enumerate minutely, but generally principles requiring later interpretation were admitted. Hence disputes quickly arose, and parties championing either broad or strict construction were formed. During the one hundred years there have been successive controversies. Considerable difficulty has been experienced in the attempts to discriminate between the powers granted by the Constitution to the States and General Government, respectively. Especially was this true in questions concerning taxation and commerce. Naturally, attempts have been made to secure amendments, either to remedy defects or to establish some favorite principle. It is noteworthy that of the propositions early brought before the States for ratification two were simply in conformation of the principles adopted by the Convention.1 The change in the relative powers and importance of the States and the Union is due to the growth of custom, and especially to the effect of the civil war.

80. RESERVATION OF NONDELEGATED POWERS TO THE STATES.

The Massachusetts convention was the first to adopt the plan of proposing amendments to the Constitution at the time they

The ninth and tenth amendments.

ratified it. One of the amendments which this convention most desired to have added to the Constitution was a clause distinctly reserving the nondelegated powers to the States, hence they placed first in the series which they recommended an article which stipulated "that it be explicitly declared that all powers not delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised." The plan thus suggested of proposing amendments was taken up by six of the other ratifying conventions. A favorite subject for their recommendation was a provision similar to one quoted above.2 In accordance with the desire so generally expressed, Mr. Madison included in the series of amendments proposed by him in the First Congress a provision similar to that recommended by the States. It was in these words: "The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively." Several unsuccessful attempts were made in both Houses to insert the word " expressly" before the word "delegated." The amendment finally passed Congress at the same time as the others of the series, with the addition of the words "or to the people" at the end of the article."

3

4

81. EFFECT OF EXPRESSED PROHIBITIONS ON CONGRESS.

Another phase of the same agitation grew out of the fear that the expressed inhibition on Congress against the exercise of certain powers might be construed into an assumption of powers not so prohibited. To meet this case the constitutional convention in Virginia also recommended an additional article as a guide in the interpretation of the Constitution and to prevent the extension of the power of Congress. It was in these words: "That those clauses which declare that Congress shall not exercise certain power be not interpreted, in any manner whatsoever, to extend the power of Congress; but that they be construed either as making exception to the specified power when this shall be the case, or otherwise, as inserted

App., No. 1.

2 Convention in New Hampshire, South Carolina, Virginia, and North Carolina also proposed a similar amendment. App., Nos. 11, 14, 26, 78.

App., Nos. 145, 190.

4 A similar provision in the constitutions of New Hampshire, Massachusetts, Indiana, and West Virginia.

App., Nos. 191, 192, 231, 232, 233, 265, 266.

6 App., No. 266.

7 The North Carolina convention incorporated this amendment in her series as well as several of the other propositions of the Virginia convention. App., No. 95.