(2) The creation of a new tribunal to determine disputes between the States and the General Government has been thrice suggested. The legislature of Pennsylvania, in consequence of the State being obliged to yield in the famous Gideon Olmstead case to the decision of the Supreme Court, passed a resolution in 1809 instructing their Senators and Representatives to use their influence to procure an amendment to the Constitution so that an impartial tribunal may be estab lished to determine disputes between the General and State governments. This amendment was not concurred in by a single State. On the contrary, the legislatures of several of the States formally disapproved of it,3 among them Virginia, Ohio, Kentucky, and Georgia. This fact is of especial interest in view of their subsequent action.

In like manner, the legislature of Georgia in 1833 expressed its desire for an amendment authorizing the establishment of some tribunal of last resort for the settlement of all such disputes.*

The Pennsylvania authorities had forcibly resisted the enforcement of the decision of the Supreme Court affirming the decision given by the Committee of Appeal of the Congress of the Confederacy. In this case, decided in 1809, the Supreme Court first found itself called upon to declare a State law void. United States v. Peters, 5 Cranch, 115; Constitutional History as Seen in American Law, pp. 82-85; Hildreth, III, pp. 155–164; Story, I, p. 282, note; ante, par. 76. For other references, see Foster, Com. on Const., p. 143, note 14.

2 App., No. 397; Annals of Congress, Eleventh Congress, second session, pp. 2253-2270; Annual Register (1809), pp. 150-175; ibid. (1810), pp. 113-136; Jour. of Senate of Penn. (1-08-09), pp. 268 et seq.

3 The following States are known to have passed resolutions of "disapproval: " New Hampshire, Vermont, New Jersey, Maryland, Virginia, North Carolina, Georgia, Ohio, Kentucky, and Tennessee. No. Am. Rev., October, 1830, pp. 507-512; Niles' Register, vol. XLII, pp. 92-93, 318-319; vol. XLIII, pp. 84-85, 93, Suppl., p. 24; The Aurora, February 8, 1810; Jour. of Senate of Penn. (1808–09), p. 268; ibid. (1809-10), pp. 74, 166, 281; ibid. (1810-11), pp. 37, 41, 165; ibid. (1811-12), p. 95. The legislature of Virginia unanimously declared that "they are of the opinion that a tribunal is already provided by the Constitution of the United States, to wit, the Supreme Court, more eminently qualified * ** to decide the disputes aforesaid in an enlightened and impartial manner than any other which could be created." "The creation of a tribunal such as is proposed by Pennsylvania would, in our opinion, tend rather to invite than to prevent collisions between the Federal and State courts. It might also become in process of time a serious and dangerous embarrassment to the operation of the General Government." Compare with subsequent action of Virginia, pp. 161162, note 5. On the other hand, in 1831 the legislature of Pennsylvania declared that the Supreme Court had jurisdiction on constitutional questions. Story, vol. I, p. 282, note 1; Am. An. Reg., vol. 6, pp. 336–337.

4 App. No. 618. Counter replies from Massachusetts and Virginia. Am. An. Reg., vol. VI. pp. 356-357, 316-317, 336-337. Resolves of Massachusetts, vol. XIX, pp. 411-423. Governor Troup, in a letter to the Senators and Representatives of Georgia in Congress, under date of February 21, 1827, writes: "I consider all questions of mere sovereignty as matter for negotiation between the States and the United States until the competent tribunal shall be assigned by the Constitution itself for the adjustment of them." *** "According to my limited conception, the Supreme Court is not made by the Constitution of the United States the arbiter in controversies involving rights of sovereignty between the States and the United States." Niles' Register, XXXII, 20. See reply of the legislature of Georgia to Marshall's issue of the writ of error in case of Tassels. Niles' Register, XXXIX, 338: Von Holst, History of the U. S., 1, 455.

Their own controversies with the United States authorities1 and the recent nullification movement in South Carolina2 naturally suggested this amendment,

A third proposition was that such controversies should be referred to the Senate.

3

In the early twenties the Democracy was greatly excited over the recent decisions of the Supreme Court extending and strengthening the powers of the General Government. At the opening of Congress in 1821 Senator Johnson of Kentucky, later Vice President, introduced an amendment which provided that in all controversies to which the judicial power of the United States should be construed to extend to which a State should be a party, and in all cases in which a State should desire to become a party, "in consequence of having a constitution or law of such State questioned, the Senate of the United States shall have appellate jurisdiction." This resolution led to an interesting debate, in which the right of the Federal court to declare a State law unconstitutional was called in question. Senator Johnson opened the discussion with the remark that his resolution was prompted by the deci sion which had declared unconstitutional an act of the Kentucky legislature called the "occupying claimant law." Later, in an elaborate speech attacking the recent decisions of the Supreme Court, he showed that the Federal judiciary had declared unconstitutional and void the laws of nine of the States. "I know of no clause in the Federal Constitution,"

5

'Cherokee Nation v. Georgia, 5 Peters, 1; Tassels v. Georgia; copy of writ (1830), Niles Register, XXXIX, 338; Worcester v. Georgia, 6 Peters, 515; Von Holst, 1, 433-458; Bryce, 1, 268-269; Reply of Massachusetts legislature (1831) against the action of Georgia, Jour. of Senate of Penn. (1830-31), p. 541.

2 See preamble of the resolutions passed by the legislature of South Carolina calling for a convention to amend the Constitution of the United States. Am. An. Reg., vol. VIII 295. See post, pars. 83, 177.

3 Even Jefferson from his retirement felt called upon to write in 1820: "The judiciary of the United States is the subtle corps of sappers and miners constantly working under ground to undermine the foundations of our confederate fabric. They are constantly constructing our Constitution from a coordination of a general and a special government to a general and supreme one alone." Works, VII, 192; see also ibid., 134, 216, 256.

4 App., No. 501. Sumner, Andrew Jackson, p. 128. This would correspond with the practice of the present German Empire. Hart, Fed. Govt.. sec. 260.

New Hampshire, New York, New Jersey, Pennsylvania, Maryland, Virginia, Ohio, Kentucky, and Georgia, in the following cases: New Hampshire (1819), Dartmouth College v. Woodward, 4 Wheaton, 518. New York (1819), Sturges v. Crowninshield, 4 Wheaton, 122. New Jersey (1812), New Jersey r. Wilson, 7 Cranch, 164. Pennsylvania (1808), United States v. Peters, 5 Cranch, 115. Maryland (1819), McCulloch v. Maryland, 4 Wheaton, 316. Virginia (1821), Cohens v Virginia, 6 Wheaton, 264. Ohio (1819-1821). Ohio Bank Tax Case (Bank of United States v. Osborn et al), 9 Wheaton, 738; Niles Register XVII, 139; XIX, H. Doc. 353, pt 2—11

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, XX1, 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 arraign 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 consequence 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. Post, pars. 148, 156. See resolutions of the legislature of Delaware in 1833, in reply to those of South 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, III. 162: Landon, pp. 239-240. Other references, see Story, 1, pp. 261, note 3; 272, 281, note 1; 282, note 1. Niles' Register, XLIII, Supplement.

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, 1, 553. For origin of the practice of the judiciary declaring legislative act void, consult the following: Brinton Coxe, Judicial Power and Unconstitutional Legislation, Parts II-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.

2 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 concurrence 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.

App., No. 1223.

4 App., No. 1335.

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.1 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.

1 For estimate of the influence of Marshall, see article by Henry Hitchcock in Constitutional History as Seen in American Law, chapter 11; Bryce, 1, 267, 384-385.