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unconstitutional laws. It passes belief that a doctrine conceded in the Virginia convention and stated as indisputable by Wilson in the Pennsylvania convention was a novelty!

Pendleton, who had been a member of the Virginia Court of Appeals that decided Commonwealth v. Caton,' said:


The very inference is that oppressive laws will not be warranted by the constitution, nor attempted by our representatives, who are selected for their ability and integrity, and that honest independent judges will never admit an oppressive construction.2

Luther Martin, author of the celebrated resolution, left the Philadelphia Convention before the close of its proceedings and opposed the Constitution in Maryland. In an address to the legislature of that State, he criticised the third article creating the judicial power. No member of the Maryland legislature could have been in doubt as to the power conferred, for he said:

Whether, therefore, any laws or regulations of the Congress, or any acts of its president, or other officers are contrary to, or not warranted by the constitution, rests only with the judges, who are appointed by Congress to determine, by whose determination every State must be bound. 3

While he did not expressly attack the provisions

George Wythe, who sat with Blair and Pendleton upon the bench that decided Commonwealth v. Caton, was also a member of the Virginia convention.

2 Elliot's Debates, iii., 548.
3 Farrand, Record of the Convention, iii., 220.

bringing State judgments under review by the Supreme Court, the tenor of his argument shows his appreciation of the existence of that power of review.

In the South Carolina convention Charles Pinckney, a delegate to the Federal Convention, thus spoke:

The judicial he conceived to be at once the most important and intricate part of the system. That a supreme federal jurisdiction was indispensable, cannot be denied. It is equally true that, in order to insure the administration of justice, it was necessary to give it all the powers, original as well as appellate, the Constitution has enumerated; without it we could not expect a due observance of treatiesthat the state judiciary would confine themselves within their proper sphere, or that general sense of justice pervade the Union which this part of the Constitution is intended to introduce and protect—that much, however, would depend upon the wisdom of the legislatures who are to organize itthat, from the extensiveness of its powers, it may be easily seen that, under a wise management, this department might be made the keystone of the arch, the means of connecting and binding the whole together, of preserving uniformity in all the judicial proceedings of the Union--that, in republics, much more (in time of peace) would always depend upon the energy and integrity of the judicial than on any other part of the government—that, to insure these, extensive authorities were necessary; particularly so were they in a tribunal constituted as this is, whose duty it would be not only to decide all national questions which should arise within the Union, but to control and keep the state judicials within their proper limits whenever they shall attempt to interfere with its power."

* Elliot's Debates, iv., 257, 258.

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Pinckney occupied in that convention a place analogous to Wilson's in the Pennsylvania convention.

William R. Davie, who had been associated with Iredell as one of the counsel for the plaintiff in Bayard v. Singleton, was a member of the Convention of 1787, and afterwards a delegate in the North Carolina convention of 1788. In this last convention he declared in favor of plenary judicial power, taking the same stand as Iredell had taken in his “Letter of An Elector," his reply to Spaight, and his answer to George Mason's “Objections to the Constitution." Davie said:

I take it, therefore, that there is no rational way of enforcing the laws but by the instrumentality of the judiciary. From these premises we are left only to consider how far the jurisdiction of the judiciary ought to extend. It appears to me that the judiciary ought to be competent to the decision of any question arising out of the Constitution itself. On a review of the principles of all free governments, it seems to me only necessary that the judicial power should be co-extensive with the legislative. ... Every member who has read the Constitution with attention must observe that there are certain fundamental principles in it, both of a positive and negative nature, which, being intended for the general advantage of the community, ought not to be violated by any future legislation of the particular states. Every member will agree that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to be disregarded or violated. Without a judiciary, the injunctions of the Constitution may be disobeyed, and the positive regulations neglected or contravened..

With respect to the prohibitory provision—that no duty or impost shall be laid by any particular state—which is so highly in favor of us and the other non-importing states, the importing states might make laws laying duties notwithstanding, and the Constitution might be violated with impunity, if there were no power in the general government to correct and counteract such laws. This great object can only be safely and completely obtained by the instrumentality of the federal judiciary. Would not Virginia, who has raised many thousand pounds out of our citizens by her imports, still avail herself of the same advantage if there were no constitutional power to counteract her regulations? If cases arising under the Constitution were left to her own courts, might she not still continue the same practices? But we are now to look for justice to the controlling power of the judiciary of the United States. If the Virginians were to continue to oppress us by laying duties, we can be relieved by a recurrence to the general judiciary. This restriction in the Constitution is a fundamental principle, which is not to be violated, but which would have been a dead letter, were there no judiciary constituted to enforce obedience to it.

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With almost clairvoyant foresight, Davie shows the Supreme Court annulling State laws oppressive to the people of sister States.

States might pass most iniquitous installment laws procrastinating the payment of debts due from every citizen for years—nay for ages. Is it probable that we should get justice from their own judiciary, who might consider themselves obliged to obey the laws of their own state? Where then are we to look for justice? What is the judiciary of the United States? . . . It is therefore necessary that the judiciary of the Union should have jurisdiction in all cases arising in law and equity under the Constitution."

1 Elliot's Debates, iv., 156, 157.

In the North Carolina convention, when the second clause of the sixth article was read, Iredell explained it.

Spaight supported the Constitution in the North Carolina convention. Answering an objector to the judiciary article (Article III., sections 1 and 2) who had said:

I wish that the Federal Court should not interfere or have anything to do with controversies to the decisions of which state judiciaries might be fully competent, nor with such controversies as must carry the people a great way from


Spaight used these words:


The gentleman objects to the cognizance of all cases in

Cases involving such laws were Sturges v. Crowninshield, 4 Wheat., 209; and Ogden v. Saunders, 12 Wheat., 214.

2 The historian Bancroft recognized Iredell as “the master mind in the North Carolina convention." Before he was forty years old Washington had placed him upon the Supreme bench of the United States. He was supported in the convention by William Richardson Davie, who had gained high honor in the war and at the bar and afterwards held high places in North Carolina and in the Union; by Samuel Johnston, Archibald MacLaine, and Richard Dobbs Spaight. “Washington, it is said, derived his conviction of Iredell's merit from a perusal of the debates in the North Carolina convention (McRee's Iredell, ii., 273). Iredell was appointed an Associate Justice of the Supreme Court in 1790, shortly after North Carolina entered the Union. He died in the same year as Washington, at the age of forty-eight years. (Bancroft's History of the United States, vi., 461; Moore's N. C.. i., 384.)

3 Elliot's Debates, iv., 136.

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