Congress
Refuses to
Appoint
a Court

The Congress was naturally desirous, as appears from the resolution, that the dispute be amicably settled by both States or brought to a just decision by the intervention of Congress, and, in order to render this possible, recommended the maintenance of the status quo pending settlement. The States in controversy, interested in the common cause, seem to have acted in accordance with the desires of Congress, although it does not appear how and to what extent its advice was followed, as there is no further reference to the case in the records of that body. An agreement for settlement was made in Baltimore on August 31, 1779,1 in pursuance of which commissioners were appointed on the part of Pennsylvania and Virginia. In consequence of this action on the part of the States," the line commonly called Mason and Dixon's line" was "extended due west five degrees of longitude," "from the river Delaware for the southern boundary of Pennsylvania," and "a meridian line drawn from the western extremity thereof to the northern line of the State" became the western boundary. On the 23d of August, 1784, the commission reported that the Ohio River was reached.2

The cession to the United States, dated March 1, 1784,3 by Virginia of its claims to all territory from the northern bank of the Ohio lessened the interest which the Old Dominion, as Virginia is affectionately called by its citizens, might otherwise have had, not only in the prolongation of the line but in the prolongation of the controversy.

The last case coming before the Congress in which a request was made, and the only one in which the Congress refused the petition to appoint a court in accordance with the ninth article, was a controversy between New Jersey and Virginia. The dispute was ended, if indeed it can properly be said to have begun, by the cession of Virginia's claims to the Northwest Territory on the 1st of March, 1784. The facts of the case, however, are interesting, as showing the magnitude of the cases referred to the Congress, because the territory in question was a large tract of land called Indiana, located between the Little Kennawa, the Monongahela and the southern boundary of Pennsylvania. A memorial was presented to Congress on September 14, 1779,5 by one George Morgan, as agent for the proprietors of this tract, claiming that his principals had acquired the tract of land by purchase from the Six Nations and other Indians, that after the purchase of the lands they had been withdrawn from the jurisdiction of Virginia by the King in Council, but that Virginia, having resumed jurisdiction thereof, was about to order sales to be made within the district in question. The memorial prayed that, as in the

case of Pennsylvania v. Virginia, the sales might be restrained and the status quo preserved until the matter could be heard by Congress. Leaving out various petitions to the Congress, it is sufficient for present purposes to say that. a petition of Colonel George Morgan, as agent for the State of New Jersey, was presented to, read and considered by Congress while that body had before it, but before it had adopted the territorial cession of Virginia, whose acceptance by the Congress on behalf of the United States would end the controversy in so far as Virginia was concerned. The petition is interesting as it was an attempt on the part of a State to enable its citizens to present a claim to the Congress and to have a court appointed for the determination of land not claimed as belonging to the State of New Jersey as such, but to land acquired by some of its citizens whose cause New Jersey espoused by virtue of their citizenship. In view, therefore, of these facts and of this action of the State of New Jersey, which is capable of a larger application, the material portion of the petition is here set forth:

To the United States of America, in Congress assembled,

The petition of Colonel George Morgan, agent for the State of New Jersey respectfully sheweth; that a controversy now subsists between the said State and the Commonwealth of Virginia respecting a tract of land called Indiana, lying on the river Ohio, and being within the United States: That your petitioner and others, owners of the said tract of land, labor under grievances from the said Commonwealth of Virginia, whose legislature has set up pretensions thereto : That in consequence of instructions from the legislature of New Jersey to their delegates in Congress, anno 1781, and the petitions of Indiana proprietors, anno 1779, 1780 and 1781, a hearing was obtained before a very respectable committee of Congress, who, after a full and patient examination of the matter, did unanimously report . . . that the purchase of the Indiana Company was made bona fide for a valuable consideration, according to the then usage and custom of purchasing lands from the Indians, with the knowledge, consent and approbation of the Crown of Great Britain and the then governments of New York and Virginia: That notwithstanding this report, the State of Virginia still continues to claim the lands in question, to the great injury of your petitioner and others: That your petitioner, on behalf of himself and the other proprietors of the said tract of land, applied to the said State of New Jersey, of which some of them are citizens, for its protection: That the legislature of the said State thereupon nominated and appointed your petitioner the lawful agent of the said State, for the express purpose of preparing and presenting to Congress a memorial or petition on the part and behalf of the said State, representing the matter of the complaint aforesaid, to pray for a hearing, and to prosecute the said hearing to issue, in the mode pointed out by the Articles of Confederation: That the said legislature ordered that a commission should be issued by the executive authority of the said State, to your petitioner, for the purposes aforesaid: That a commission was accordingly issued to your petitioner by the executive authority of the said State, a copy whereof accompanies this petition. . . . Wherefore your petitioner, as lawful agent of the said State of New Jersey, prays for a hearing in the premises, agree

ably to the 9th Article of Confederation and Perpetual Union between the United States of America.1

A motion to commit the petition and also a motion to consider and prepare an answer to it were lost, after which the Congress accepted the deed of cession from Virginia, as it had previously, in 1781, accepted a cession of the claims that New York had to the territory northwest of the Ohio. It was therefore unnecessary for the Congress to take further action on this petition in the form in which it was presented, as the claim of Messrs. Morgan and his principals was thereafter against the United States, not Virginia.

Doubtless the court of appeals in cases of capture inclined the hearts and the understanding of the good people of the Confederation to the establishment of a judiciary which could pass upon questions in which the States had assumed jurisdiction, and thus create uniformity where diversity would otherwise have existed and prejudice the Confederation as such in its relations with foreign nations. But prize cases had been for centuries submitted to prize courts, tribunals or commissions. The novelty of the procedure was to establish one court of appeal from thirteen States, a great incentive not only to the establishment of a Supreme Court but also to the establishment of an international court of prize. Controversies between States claiming to be sovereign, free and independent, and in their instrument of confederation stating and having their sovereignty, freedom and independence recognized, had not hitherto been submitted as a matter of course to courts, tribunals, and commissions. The statesmen of the American Revolution had put new wine into old bottles. They had hit upon a procedure as wise as it was novel in devising a method of settling international disputes without a resort to force, between the breakdown of diplomacy and the outbreak of war; and in the short space of ten years they had completed the long road between self-redress and arbitration to judicial settlement by the establishment of the permanent international judiciary known as the Supreme Court of the United States.

1131 U. S., Appendix, p. lx.

XII

CREATION OF THE SUPREME COURT

The Americans form but one people in relation to their Federal government; but in the bosom of this people divers political bodies have been allowed to subsist, which are dependent on the national government in a few points, and independent in all the rest,which have all a distinct origin, maxims peculiar to themselves, and special means of carrying on their affairs. To intrust the execution of the laws of the Union to tribunals instituted by these political bodies, would be to allow foreign judges to preside over the nation. Nay, more; not only is each State foreign to the Union at large, but it is a perpetual adversary, since whatever authority the Union loses turns to the advantage of the States. Thus, to enforce the laws of the Union by means of the State tribunals would be to allow not only foreign, but partial, judges to preside over the nation.

But the number, still more than the mere character, of the State tribunals, made them unfit for the service of the nation. When the Federal Constitution was formed, there were already thirteen courts of justice in the United States, which decided causes without appeal. That number is now increased to twenty-four [forty-eight]. To suppose that a state can subsist, when its fundamental laws are subjected to four-and-twenty different interpretations at the same time, is to advance a proposition alike contrary to reason and to experience. (Alexis de Tocqueville, De la Démocratie en Amérique, 2 vols., 1835. Translation of Francis Bowen, Vol. I, 1862, pp. 177-178.)

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States,-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. . . . (Constitution of the United States, Article III.)

This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. 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 general government, the law is void; and upright, independent judges will declare it to be so. Still, however, if the United States and the individual states will quarrel, if they want to fight, they may do it, and no frame of government can possibly prevent it. It is sufficient for this Constitution, that, so far from laying them under a necessity of contending, it provides every reasonable check against it. (Oliver Ellsworth in the Connecticut Convention, January 7, 1788, Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. II, 1836; second edition, Vol. II, 1891, p. 196.)

That a federal system again can flourish only among communities imbued with a legal spirit and trained to reverence the law is as certain as can be any conclusion of political speculation. Federalism substitutes litigation for legislation, and none but a law-fearing people will be inclined to regard the decision of a suit as equivalent to the enactment of a law. The main reason why the United States has carried out the federal system with unequalled success is that the people of the Union are more thoroughly imbued with legal ideas than any other existing nation. Constitutional questions arising out of either the constitutions of the separate States or the articles of the federal Constitution are of daily occurrence and constantly occupy the Courts. Hence the citizens become a people of constitutionalists, and matters which excite the strongest popular feeling, as, for instance, the right of Chinese to settle in the country, are determined by the judicial Bench, and the decision of the Bench is acquiesced in by the people. This acquiescence or submission is due to the Americans inheriting the legal notions of the common law, i. e. of the “most legal system of law" (if the expression may be allowed) in the world. Tocqueville long ago remarked that the Swiss fell far short of the Americans in reverence for law and justice. The events of the last sixty years suggest that he perhaps underrated Swiss submission to law. But the law to which Switzerland is accustomed recognises wide discretionary power on the part of the executive, and has never fully severed the functions of the judge from those of the government. (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution, 1885, 8th edition, 1915, pp. 175-176.)

We live under a peculiar Government, due to its dual character and limited power. We have to determine in this country not only what we ought to do, but what we can do, because we have a Government limited both as to which sovereignty shall exercise the power and limited also as to what matters can be dealt with at all. The one important original idea contained in the Constitution of the United States is the supremacy that is given to the judiciary. The thing that makes our Constitution unique from every one in the world is the fact that the Supreme Court of the United States is given power to say if the other branches of the Government have exceeded their power; has the right to declare null and void an act of the Legislature of the National Government; has the right to have disregarded the action of the Executive when it is beyond his power; and has the further right to say when the States have exceeded their sovereign powers. That is the greatest power ever given to a tribunal, and it is, as I have said, the one great characteristic of the American Constitution, and to it we owe more of the stability and grandeur of this country than to any other provision in that instrument.

Those who have read the history of America know that the real law of America is what finally exists after the statutes have been construed and passed upon by the courts of the land, that what passes Congress does not necessarily become the law of the land. Through the decisions of the Supreme Court the Constitution, open to many constructions, was so interpreted as to create a nation with power over matters of national importance and at the same time to preserve the sovereign States and their sovereignty over those matters peculiarly pertaining to the respective States and not to the nation at large. There have been times when the decisions of this court in the performance of its great functions have aroused great excitement and at times great indignation; but with the exception of the Dred Scott case [19 Howard, 393, decided in 1856] nearly every decision of that court undertaking to lay down the limits of national and State power has met with the final approval of the American people; and today it may not be inappropriate, when it has become the fashion of some of those in high places to criticise the judiciary, to call attention to these facts. Certainly, no man from my section of the country should ever care to utter a condemnation of the judiciary, for when passion ran riot, when men had lost their judgment, when the results of four years of bitter war produced legislation aimed not at justice, but frequently at punishment, it was the Supreme Court that stood between the citizen and his liberties and the passion of the hour. And I trust the day will never come when the American people will not be willing to submit respectfully and gladly to the decrees of that august tribunal. Temporarily they may seem to thwart the will of the people, but in their final analysis they will make, as they have made, for orderly government, for a government of laws and not of men, and we may be sure that the Supreme Court in the pure atmosphere of judicial inquiry that has always surrounded it will arrive at a better interpretation of the powers of both State and National Governments than can be possibly hoped for in a forum like this, where popular prejudice and the passions of the hour affect all of us, whether we will or no. (Speech of the Honorable Swagar Sherley, of Kentucky, in the House of Representatives, January 10, 1908, the Congressional Record, Sixtieth Congress, First Session, Vol. XLII, 1908, p. 589.)