except those in which the Constitution had given them original jurisdiction. Congress has "excepted" some cases out of the appellate jurisdiction of the Supreme Court, giving the final disposition of them to the inferior Courts.

The Act of Congress now referred to provides for the exercise of appellate power by the Supreme Court in certain cases which have been decided by the highest State Courts. Of course, these cases involve the Constitution, laws, or treaties of the United States; otherwise, the decision of the State Supreme Court would be final.

Two views are held as to the appellate jurisdiction of the Courts. The language of the Constitution is, "In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction both as to law and fact, with such regulations and exceptions as Congress shall make." Some maintain that the expression, "with such exceptions and regulations as Congress shall make," gives Congress the control of the whole matter. They hold that the Courts can exercise appellate jurisdiction in those cases only which Congress has provided for. If Congress had not provided any rule to regulate the proceedings on appeal, the Court could not exercise any appellate jurisdiction. This theory is, that all the judicial power of the nation, except in cases affecting ambassadors, etc., or those in which a State is a party, is placed at the disposal of Congress, who may give it out at their discretion.

Others hold that the Constitution itself vests the judicial power of the nation in the Supreme Court, and such inferior Courts as Congress may establish. The language of the Constitution is the same for the three departments of the government. As it says the Legislative power "shall be vested" in Congress, and the Executive power in the President, so the Judicial power "shall be vested" in the Courts. By the Constitution Congress may make the necessary laws, the President

may execute them, and the Courts may interpret and apply them. As Congress is not dependent upon the President for authority to legislate, neither are the Courts dependent on Congress for authority to exercise their judicial functions. According to this view the whole judicial power belongs to the Courts. "Congress may remove or 'except' some cases out of the appellate jurisdiction of the Supreme Court by giving it to some other Court of the United States, but not by abolishing it, or leaving it to be exercised or not by any body else. They may also make 'regulations; that is, prescribe rules by which the jurisdiction shall be exercised so as to render it efficient and effectual for its purposes, but in no case to limit or obstruct it.

"The only power conferred on Congress by this clause is to make exceptions to, and regulations for, the appellate jurisdiction of the Supreme Court. If they do neither, that Court has the whole appellate power by the Constitution. If they make exceptions,' they must give cases excepted to some inferior Court. If they make 'regulations,' the jurisdiction must be exercised according to the rules so prescribed; otherwise, the jurisdiction must be exercised in conformity to such rules as the Court itself may prescribe, according to law." Though the former of these views has been the one adopted in the main, both by the Legislative and Judicial departments of the government, the latter seems to be more in accordance with the spirit and letter of the Constitution.

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The Courts of the United States have a wider scope than those of Great Britain. If a law of Congress conflicts with the Constitution, the Supreme Court may declare it null and void. But the Courts of Great Britain can only interpret and apply the statutes of Parliament; they can not declare them null. There is

Farrar, p. 471.

C. G. 18.

no question of constitutionality or unconstitutionality touching an act of the British Parliament. Parliament itself is supreme for law-making purposes; it possesses all the legislative power of the British people. But while Congress can repeal or amend their own statutes, they can not alter or amend the Constitution. The Constitution is the work of the people, and they alone can amend it. The legislative power of Parliament, therefore, is broader than that of the Congress of the United States, and, as a consequence, the province of the British Courts is narrower than that of ours.1

It has been already said that the powers of the Courts. are judicial, not political. Thus if there were two contending parties, each claiming to be the rightful government, of France, for instance, the question would not be left to the Judiciary. So if there should be a contest between two parties in a State, each claiming to be the legitimate government, the question would be a political, and not a judicial, one. Congress has decided that the votes of certain States should not be counted in an election for President; Congress has also decided that, where the legislature of a State had voted to ratify an amendment to the Constitution, and subsequently withdrawn its ratification, the vote of ratification must be counted. The Supreme Court has itself decided that certain questions were political, and therefore did not come within its jurisdiction. The judiciary can not prescribe a policy for the government of the country. That must be left to the other departments. The judicial department can not restrain the others in their action, though the acts of both, when performed, are, in proper cases, subject to its cognizance.2

There is danger in times of high political excitement that one department may encroach upon another; but

1 Yeaman's Study of Government, Chap. vii. 24 Wallace, 500.

no government, save an absolute despotism, could be framed in which this liability would not exist. We have a right to assume that each department of the government will honestly and in good faith confine itself to the duties which by the Constitution have been assigned to it.

Apprehension is sometimes expressed lest the Supreme Court, by deciding acts of Congress to be unconstitutional, may obstruct the work of legislation, and block the wheels of government. But it must be remembered that each of the three great departments of the government is clothed with great power, and each may do incalculable mischief, if so disposed; yet the history of the nation does not show that this power has been so used to any considerable extent. In general, the National Courts have been extremely cautious in regard to interference with the laws of Congress.

"It is an axiom in our jurisprudence," says Judge Swayne (United States vs. Rhodes and others), “that an act of Congress is not to be pronounced unconstitutional unless the defect of power to pass it is so clear as to admit of no doubt. Every doubt is to be resolved in favor of the validity of the law. Since the organization of the Supreme Court but three acts of Congress have been pronounced void for unconstitutionality."

The first instance was in 1801, at the beginning of Mr. Jefferson's administration. Near the close of the administration of Mr. Adams, a person was appointed. to office and his commission made out, but not delivered. Mr. Jefferson withheld the commission. Application was made to the Supreme Court for a writ of mandamus, to compel Mr. Madison, the Secretary of State, to deliver it; the judiciary act of 1789 authorizing the Supreme Court to issue such writs. But the Court, while they held that to withhold the commission was an act not warranted by law, and violative of a vested legal right, decided that clause of the act of 1789

to be unconstitutional, as it gave the Court original jurisdiction where the Constitution had not given it.1 The second instance was in the celebrated Dred Scott case, in Mr. Buchanan's administration, in 1857. The Court decided that the eighth section of the act of Congress of 1820, preparatory to the admission of Missouri into the Union, commonly called the "Missouri Compromise," was unconstitutional. This section prohibited slavery in that part of the Louisiana territory lying north of thirty-six degrees thirty minutes north latitude, and not included in the State of Missouri.2 (It was claimed by the minority of the Court at the time, and by other Judges of the same Court since, that this question. was not before the Court, and, therefore, that what was said in regard to it was no more binding than the views of the minority.)

The third case was that of Garland, of Arkansas, which was tried in the winter of 1866-7. Congress had enacted, (Act of July, 1862, amended by that of January, 1865,) that all officers of the United States, including attorneys practicing in United States Courts, should take a test oath. The Supreme Court decided that this act was unconstitutional as to attorneys of the Supreme Court, who were such before the rebellion, as being a bill of attainder and an ex post facto law. 3

The last two decisions were made in times of high political excitement, and were severely commented upon by lawyers; the dissenting judges also gave their reasons for believing the laws in question to be strictly constitutional. Some other cases have occurred more recently, but they are comparatively unimportant.

The fact that, in a period of more than fourscore years, Congress enacted but three laws, which, in the judgment of the Supreme Court, contained any thing conflict

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1 Cranch, 137, Marbury vs. Madison. 219 Howard, 393, Scott vs. Sandford. 34 Wallace, 334, Ex parte Garland.