deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

It can be of no weight to say, that the courts, on the pretence of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it proved anything, would prove that there ought to be no judges distinct from that body.

In No. LXXX. of the Federalist, in a further consideration of the powers of the judicial department, Hamilton thus argued that there ought always to be a constitutional method of giving efficacy to constitutional provisions:

The first point depends upon this obvious consideration, that there ought always to be a constitutional method of giving efficacy to constitutional provisions. What, for instance, would avail restrictions on the authority of the state legislatures, without some constitutional mode of enforcing the observance of them? The states, by the plan of the convention, are prohibited from doing a variety of things; some of which are incompatible with the interests of the union, others with the principles of good government. The imposition of duties on imported articles, and the

emission of paper money, are specimens of each kind. No man of sense will believe that such prohibitions would be scrupulously regarded, without some effectual power in the government to restrain or correct the infractions of them. This power must either be a direct negative on the state laws, or an authority in the federal courts, to overrule such as might be in manifest contravention of the articles of union. There is no third course that I can imagine. The latter appears to have been thought by the convention preferable to the former, and I presume will be most agreeable to the states.

In repelling the false notion that the power might be in the State courts, he said:

Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.

In No. XLIV. of the Federalist, Hamilton thus reminds his readers of the efficacy of the judicial power:

If it be asked, what is to be the consequence, in case the congress shall misconstrue this part of the constitution, and exercise powers not warranted by its true meaning? I answer, the same as if they should misconstrue or enlarge any other power vested in them; as if the general power had been reduced to particulars, and any one of these were to be violated; the same, in short, as if the state legislatures should violate their respective constitutional authorities. In the first instance, the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort, a remedy must be obtained from the people, who

can, by the election of more faithful representatives, annul the acts of the usurpers.

The evidence upon the subject has by no means been exhausted. Nevertheless, there has been mustered a vast array of proof that the delegates to the Convention of 1787 did not frame its judiciary articles in ignorance of their meaning, and that the delegates to the ratifying conventions were sufficiently admonished as to the ability of the new judicial power to veto unconstitutional laws, State and Federal. Doubtless they could not have foreseen the extent to which the power would expand in a century under the influence of judicial interpretation. In No. LXXX. of the Federalist Hamilton presumes a conscious purpose in the members of the Federal Convention to confer upon the new judiciary this power of overriding unconstitutional legislation, and implies that the State conventions, if they ratified the Constitution, would mean to approve this action of the Convention of 1787. As a delegate to Philadelphia, a member of New York's ratifying convention, a writer in the Federalist, and a correspondent of influential citizens in other States, Hamilton was assuredly in a position to know the views of his contemporaries upon this transcendently important subject. That the Philadelphia Convention deliberately intended to create a branch of the government which might negative State laws at variance with the fundamental law of the Union, and nullify acts of Congress at war with that organic law, and that it meant to give the courts the ultimate interpretation of treaties (save

where the questions were purely political), the proofs cited seem convincing. The members of the Convention knew the situation which then encompassed the Congress of the Confederation and were aware that State legislatures were usurping power to determine the scope and meaning of the treaty with Great Britain. They knew also that the Congress of the Confederation, protesting against this usurpation, had urged the States not only to repeal all such legislation but to have their judges declare it void. They all shared the sentiment then widely prevalent that the Federal legislature would be prone to tyranny, and that some adequate check upon its otherwise irresponsible power must be found. This was the problem they sought to solve. Their solution was the device of the Federal judiciary. To argue that they did not intend this solution is to contradict their repeated utterances and to discredit their intelligence.

THE JUDICIARY ACT OF 1789

The provisions of the Constitution were not selfexecuting. They were supplemented by the Judiciary Act, passed September 25, 1789. In the framing of this act members of the late Federal Convention who had become members of the Senate and of the House of Representatives participated. Unless the violent assumption is to be made that this act was not at all in accordance with the purpose of the makers of the Constitution it must be treated as evincing their intent. It

has frequently and justly been cited as a contemporary construction of the Constitution. Oliver Ellsworth and William Johnson of Connecticut, Robert Morris of Pennsylvania, William Paterson of New Jersey, were members of the first Senate and voted in favor of the act; in the House of Representatives which approved the measure was Abraham Baldwin of Georgia, who in a speech in that body, June 19, 1789, admitted that it was the province of the judiciary "to decide upon our laws," and that if they should find any unconstitutional, the courts would "not hesitate to declare it so." Richard Bassett of Delaware and George Wythe of Virginia, one of the bench of the Court of Appeals which had decided the case of Commonwealth v. Caton, were also members of the House, and took prominent part in shaping this legislation. All these men had been conspicuous in the Philadelphia Convention.

Nothing could be plainer than section 25, relating to that portion of the appellate jurisdiction of the Supreme Court which makes it the final judge of the constitutionality of State and Federal legislation. Section 25 provided as follows:

A final judgment or decree in any suit, in the highest court of law or equity of a state in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; .. or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially