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law and equity arising under the constitution and the laws of the United States. This is very astonishing. When any government is established, it ought to have power to enforce its laws, or else it might as well have no power. What but that is the use of a judiciary?


Spaight's protest against judicial control in his letter to Iredell has been assigned by some an importance beyond its merits. If, when he wrote it, he was convinced that the North Carolina court had been more despotic than Appius Claudius and his fellow-decemvirs, he was abnormally silent ever afterwards upon the subject of judicial despotism. His silence has been used as an argument to show that the Philadelphia Convention did not suspect it was conferring any of the “enormous power” which the judiciary now exercises. It has been said that Spaight “would have made the halls in which the Convention met ring to the echo with his emphatic protest, had he suspected any such implication.” .

This is mere rhetoric. Spaight, I am inclined to think, was convinced of his errors by Iredell's rejoinder. He could not have failed to know the views of the most influential members of the Convention, for we have seen how openly they were expressed. He must have been defective in perception if he did not comprehend the meaning of the judiciary and the “supreme law" clauses. He sat with Davie and Iredell in the first North Carolina convention, and heard Davie's explicit declaration that the new Supreme Court could nullify both acts of State legislatures and laws of Congress at variance with the new Constitution. Spaight not only signed the Constitution at Philadelphia, but voted to ratify in the first North Carolina convention, and when the second convention finally ratified, wrote Iredell that he was "happy to hear that wisdom has presided in our councils and enabled the convention to break through that cloud of ignorance and villainy which has so long obscured our political horizon.": This letter, November 26, 1789, was penned notwithstanding the fact that the first Congress had enacted the judiciary law of September 24, 1789, section 25 of which in plainest terms recognized the power of the Supreme Court to set aside acts of State legislatures as well as acts of Congress inimical to the Constitution.

1 Elliot's Debates, iv., 139.

The report of the debate in the Massachusetts convention shows that on January 28, 1788, and the two following days, the second and third articles of the Constitution were taken up and fully discussed.

Elbridge Gerry transmitted the proposed Constitution to the President of the Senate and the Speaker of the House of Representatives of Massachusetts, and in his letter of transmission, October 18, 1787, expressing his disapproval, said:

My principal objections to the plan, are, that there is no adequate provision for a representation of the people—that they have no security for the right of election—that some of the powers of the legislature are ambiguous, and others indefinite and dangerous—that the executive is blended with, and will have an undue influence over, the legislaturethat the judicial department will be oppressive-that treaties of the highest importance may be formed by the president with the advice of two thirds of a quorum of the senate and that the system is without the security of a bill of rights."

1 McRee's Life of Iredell, ii., 264, 273.



What else could he have meant by the expression, "the judicial department will be oppressive,” than that its power to nullify legislation might prove tyrannical??

In the Connecticut convention, Oliver Ellsworth made a thorough explanation of the proposed judiciary system, and asserted that a coercive principle was necessary for the Union. It should be, however, a coercion of law, not of arms. The judicial department was designed to furnish the constitutional check both upon Congress and State legislatures.

If the United States go beyond their powers, if they make a law which the constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void. On the other hand, if the states go beyond their limits, if they make a law which is a usurpation upon the federal government, the law is void; and upright, independent judges will declare it to be so.3


* Farrand, Record of the Convention, iii., 128.

? A document in Gerry's handwriting was found among the King MSS., headed “Mr. Gerry's Objections.” One reads: “The Judiciary will be a Star Chamber" (Farrand, Record of the Convention, ii., 635).

3 Elliot's Debates, ii., 196; Farrand, iii., 240.

To Ellsworth's remarks in the Connecticut convention I shall recur later in presenting Mr. Webster's views.

Ellsworth was the author of "Letters of a Landholder" which were published in the Connecticut Courant, Hartford, and in the American

Three papers by Hamilton in the Federalist also tend to refute the notion that the Philadelphia Convention did not mean to establish a national judiciary with

a a negative upon State and Congressional legislation at variance with the supreme law of the land. These Mercury, Litchfield, Connecticut. These Letters “had a wide circulation, numbers being reprinted as far north as New Hampshire and as far south as Maryland. They called out several replies” (Ford's Essays on the Constitution, 137).

In a letter written by the “Landholder" to Luther Martin, Ellsworth credits Martin with originating the supreme law clause of the Constitution.

In one of his replies to the “Landholder," Martin expressly admits that he originated the supreme law clause and that he voted for an appeal to the supreme judiciary of the United States for the correction of all errors both in law and in fact. He rests his objection to article III, as finally formed on the ground that it gave the judges the dangerous and alarming power of setting at naught a verdict of the jury, thus leaving the determination of the facts to the judges themselves.

Martin, in his letter to the citizens of Maryland, March 25, 1788, opposing the Constitution, neither denies his responsibility for that clause nor criticises the grant of judicial power over legislation. His chief objection to the judiciary article was that it should have included a bill of rights, and that jury trials would not be had in a great variety of cases (Farrand, Record of the Convention, ii., 271, 295).

I "I have read every performance which has been printed on one side and the other of the great question lately agitated (so far as I have been able to obtain them) and, without an unmeaning compliment, I will say that I have seen no other so well calculated (in my judgment) to produce conviction on an unbiassed mind, as the Production of your Triumvirate [the Federalist]. When the transient circumstances and fugitive performances which attended this Crisis shall have disappeared, that work will merit the Notice of Posterity; because in it are candidly and ably discussed the principles of freedom and the topics of government, which will be always interesting to mankind so long as they shall be connected in Civil Society. (Washington to Hamilton, August 28, 1788. Reprinted in Doc. Hist. of the Constitution of the U. S., vol. V., p. 33.)

papers were read and criticised in other States than New York. Hamilton, like Iredell, was a conspicuous advocate of plenary judicial power. In one of these papers (No. LXXVIII.) he deals with the power of courts to declare void any law at variance with the constitution of a State; in another (No. LXXX.), with the judicial system proposed by the Convention of 1787, and its authority over State legislation and Congressional enactments inimical to the new Constitution. His opinions were the outgrowth of his study in the case of Rutgers v. Waddington. Seizing with his usual perspicacity upon essential features, he urged that the authority which could declare the acts of another void must necessarily be superior to the one whose acts may be declared void.

In No. LXXVIII. of the Federalist, Hamilton said:

Some perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the grounds on which it rests cannot be unacceptable.

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid. To deny this, would be to affirm, that the

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