set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission,-may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error.

BIRTH OF THEORY OF LIMITED JUDICIAL POWER

History furnishes convincing proof as to the date when the doctrine that the Supreme Court has no power to set aside legislation was first explicitly announced. It never appeared until the formulation of the Virginia and Kentucky resolutions in 1798, 1799. These resolutions denied this power, and asserted the right of the separate States to judge whether acts of their own legislatures conflicted with the organic law of the Union, and to repudiate acts of Congress which they deemed unconstitutional doctrines that would have been subversive of the Federal government, had they prevailed. The governors of Kentucky and Virginia transmitted copies of the resolutions to the governors of other States for approval. The only responses, all of which were antagonistic in character, came from Delaware, Rhode Island, Massachusetts, New Hampshire, Vermont, and New York. These were all of similar purport, and declared that the judicial power of the United States was the sole and ultimate authority to decide upon the constitutionality, not only of State legislation, but of any act or law of the Congress of the United States. The Massachusetts resolutions denied the right of any

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1 Kentucky and Virginia Resolutions, Lalor, ii., 673; McMaster, ii., 495; P. S. Q., xxvii., 27, note 2.

State legislature "to judge of the acts and measures of the Federal government." The New Hampshire resolutions declared that the State legislatures were not 'the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of decision was properly and exclusively confided to the judicial department." Vermont's resolutions were almost in the same words. It is in the Virginia and Kentucky resolutions that the first outspoken revolt against judicial control appears. At that time the notion took its rise that the courts could not annul legislation. Naturally advocates of the new theory, although they were few in number, were heard in the debate over the judiciary system which took place in Congress early in 1802 within a year after Jefferson's inauguration.

Before 1801 the Supreme Court had consisted of six justices who held two terms a year at the Federal capital; and twice a year they served in circuits, each justice sitting in association with a district judge. The system proved unsatisfactory both to the judges and to the bar. By the act of February 13, 1801, the number of Supreme Court justices was reduced to five, and their circuit duties were taken away and transferred to newly created circuit judges. There were six circuits with twenty-three districts, and the circuit judges sat independently of the district judges as well as of the supreme bench. The result was a multiplicity of judicial offices and increased annual expenses. The new places had been filled with Federalists by President Adams in the dying hours of his administration, or, to use an

expression of Jefferson's, the Federalists retreated into the judiciary as a stronghold.

JUDICIARY DEBATE OF 1802

One of the first acts of Congress after the beginning of Jefferson's administration was the reorganization of the courts and the abolition of these new circuit justiceships. Breckinridge, in the Senate, moved the repealing act, January 8, 1802; and it was carried February 3d, after a spirited debate which turned chiefly upon the constitutionality of the bill. The vote was close, the bill being passed in the Senate by 16 to 15. A prolonged and somewhat acrimonious discussion followed in the House of Representatives. It was exceedingly able, although the historian Henry Adams calls it a dull debate. Many upheld the power of the courts to nullify laws, and even advocates of the repealing bill conceded that this power belonged to the State judiciary. Almost every important consideration presented in the recent debate in Congress upon the Arizona constitution will be found to have been urged in the debate of 1802.

Bayard of Delaware, and Rutledge of South Carolina, were among the leading opponents of the bill in the House. They denied that the State courts had exclusive right to decide upon the validity of laws of Congress. The State tribunals have the right to declare an act of Congress void, said Bayard, but their decisions

are reviewable by the Supreme Court of the Union.

He quoted the twenty-fifth section of the Judiciary Act of 1789, and said:

Thus as early as the year 1789, among the first acts of the government, the legislature explicitly recognized the right of a state court to declare a treaty, a statute, and authority exercised under the United States, void, subject to the revision of the Supreme Court of the United States; and it has expressly given the final power to the Supreme Court to affirm a judgment which is against the validity either of a treaty, statute, or an authority of the government.1

Huger of South Carolina quoted Judge Tucker, Professor of Law in the College of William and Mary, and one of the judges in the Supreme Court of Virginia, who in his treatise upon the State and Federal constitutions had asserted the supremacy of the Federal judiciary and its unquestioned right to override unconstitutional laws. 2

Tallmadge reminded the House that "when the Constitution was sent to the several States for adoption, every article and clause in it underwent a severe scrutiny and a most critical examination. Perhaps no article was more minutely examined than that which respects the judicial establishment, and from what I then heard and have since been informed, I am induced to believe that the Constitution would not have been adopted, if the independence of your judges had not been deemed to be secured by that instrument."

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1 Annals of Congress (7th Cong.), 647, 648. Id., 679, 680. 3 Id., 942.

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Rutledge, in an elaborate address, reviewed the history of the making of the Constitution. He admitted the argument could not be conclusive because the inquiry was not so much what the Constitution ought to be as what it really is. "If any doubt hangs over its language," said he, “it is fair to ascertain the meaning by recurring to what must have been the wish and the intention of those who framed the instrument." It was, he declared, well known to every member of the House that the right of the State courts to decide upon the constitutionality of State laws had been recognized in the laws themselves, that the power had been exercised by the courts, which had pronounced laws unconstitutional and void, and that not only had these decisions been acquiesced in by the legislature, but that the condemned laws had in fact been removed from the codes of State statutes. Throughout this debate the power of State judges to overthrow unconstitutional laws seems to have been conceded, the contention of the advocates of the bill being that the power did not reside in the Supreme Court of the United States.2

The Federalists undeniably went too far in urging that the repeal bill was unconstitutional. There can be no doubt of the power of Congress to abolish an inferior court.3 As Breckinridge said, "because the

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' Rutledge is to be distinguished from John Rutledge who was a member of the Federal Convention and afterwards Chief Justice of the Supreme Court of the United States, and from Edward Rutledge who was a member of the South Carolina ratifying convention. 2 Annals of Congress (7th Cong.), 746.

3 Congress would, I think, be guilty of an unconstitutional act were it to abolish the inferior courts without substituting others in their place if