"treaties made or which shall be made under their author"ity,' conformably to a preceding amendment in another "place."

The beginning of the section thus then read: "The juris"diction of the Supreme Court shall extend to all cases arising under this constitution and the laws of the United "States and treaties made or which shall be made under "their authority." In spite of the true construction of the amended text being generally supposed in the convention to mean that the jurisdiction of the Supreme Court, in cases arising under the constitution, was extended to cases of a judiciary nature and not extended to all cases generally whether judicial or extrajudicial, Madison was not satisfied. Not long after, while this section was still under consideration, he says: "Mr. Madison and Mr. Gouverneur Morris "moved to strike out the beginning of the third section, "The jurisdiction of the Supreme Court,' and to insert "the words, the judicial power' which was agreed to nem. "con." The section thus then read: "The judicial power "shall extend to all cases arising under," etc.

The constitution itself now reads: "The judicial power "shall extend to all cases in law and equity arising "under," etc.

"The judicial power," intended by the Framers when making the said amendment was the judicial power of the United States, both in law and equity, as mentioned in section 3, of article 11. of the draft, which, as previously amended, thus read at that particular moment: "The judi"cial power of the United States, both in law and equity, "shall be vested in one Supreme Court, and in such inferior courts as shall, when necessary, from time to time, be constituted by the legislature of the United States."

It is thus clear the Framers expressly intended that the judicial power of the United States should not extend to constitutional cases of an extrajudicial nature arising under the new constitution. It is equally clear, however, that they expressly intended that the said judicial power should positively extend to constitutional cases of a judiciary or judicial nature arising under the constitution. There was

no doubt or anxiety among the Framers upon this head. Their only anxiety was to prevent the jurisdiction of the Supreme Court from extending to constitutional cases of an extrajudicial nature. On that August 27th, it was twice provided that jurisdiction should extend to constitutional cases of a judicial nature. The first provision was the text of the draft as amended in Johnson's motion. This first provision gave rise to the first case of constitutional construing on record. The words, "the jurisdiction of the Supreme "Court shall extend to all cases arising under this consti"tution," were construed by the Framers to mean that the jurisdiction was constructively limited to cases of a judicial nature, that is to say, expressly extended to cases of a judicial nature and not further to cases of an extrajudicial nature. On second thought, they were not satisfied with this merely constructive meaning for their words and substituted the other words, which were selected because expressly and not constructively importing their intended meaning. By this substitution the text read: "The judi"cial power shall extend to all cases arising under this "constitution." The express meaning of the new text and the construed meaning of the old text thus perfectly coincided. This meaning was later in the day reaffirmed by the insertion of the words, "both in law and equity," upon a motion which could have occasioned no debate, for Madison does not mention it, although it is of course recorded in the Journal.*

It was thus generally assumed in the convention that all constitutional cases of a judicial nature were just as much extended to by the judicial power, as all statutory cases of a judicial nature. That is to say, cases of a judicial nature, which involved the constitutional validity of legislative acts enacted under the constitution, were just as much extended to, as judicial cases involving the statutory validity of executive acts performed under a statute.

From the foregoing it can not be doubted that the con

on September 12th,

* Journal, 300. Those words were incorporated in the revised draft reported from which the word "both" was struck out, by a motion Journal, 383, 384.

of September 15th.

vention intended that the judicial power should comprehend competency to ascertain whether an act of Congress be a law made under the constitution or not, and, if not so made, to hold it to be no law thereunder. The propriety of a judicial competency so to act was generally accepted. The anxiety was to confine the Supreme Court to judicial action and to prevent it from exercising a general jurisdiction in constitutional cases, whether of a judicial or extrajudicial nature.

The generation of 1876 and 1877 learned to its cost, how well founded were Madison's fears of the judiciary mingling in extrajudicial controversies. Righteous history records the wrongful termination of the presidential crisis of 1876 and 1877. The year of the hundreth anniversary of independence began in hope and ended in fear. It closed during the execution of a coup d'état by which military force, under the control of the party in power, nullified the election of a President. On the 4th of March, 1877, men witnessed the triumph of the un-American conspiracy. On that ill-omened day, the wrong was consummated by an installation of a President, which was made under such evil auspices, that no augur could have called it an inauguration.

In the conflict between the two houses of Congress upon the counting of the votes, the expedient of an electoral commission as arbiter was resorted to. Although the commission was extrajudicial, three judges, being one-third of a full Supreme Court, were made members thereof. The commission was so constituted, that these judges had power to turn the scale whichever way two of them might decide. Thus one-third of the Supreme Court were brought into direct relation with the Senate and indirect relation with the army. The army was behind the Senate.

The Senate was armed. The House of Representatives was unarmed. Its only hope was in the mediation of the judges. That hope failed it.

Two matters of the gravest moment here require consideration.

First The case was avowedly an extrajudicial one. It

was a controversy between the two houses of Congress. It is, therefore, distinct from cases arising under the constitution to which the judicial power unquestionably extends. It is also distinct from those cases arising under the constitution, as to which it has been questioned whether the judicial power does or does not extend to them. The controversy between the Senate and the House was avowedly an extrajudicial one. It was necessarily so, according to the form of government.

Second: What the Framers thought the whole Supreme Court could not do, one-third of the court failed to do, viz., intervene as mediators in an extrajudicial controversy to the satisfaction of both opposing parties. The foregoing pages of this chapter show that such an intervention of the judges of the Supreme Court in the extrajudicial controversy between the Senate and the House was made in direct contradiction to the express intentions of the Framers. They expressly intended that the Supreme Court should not have jurisdiction of extrajudicial controversies arising under the constitution.

Was this drawing of judges of the Supreme Court into an extrajudicial controversy an isolated case? Or is it to be a precedent for the future, whenever elections fail to elect? That Madison was indeed prescient, is proved by the dire event now known. Did he forsee others, like it, yet to come? God forbid!

Before dismissing the present topic an additional remark is not improper. In striking out the words "the jurisdic"tion of the Supreme Court," and substituting the words, "the judicial power," important consequences followed as to the context in the draft. The draft of the constitution contained a chain of four clauses, which were linked together by the iterative use of the word "jurisdiction." the corresponding portion of the constitution that word is used twice only. The first of the four clauses has been changed as mentioned. The second and third retain the terms, "original jurisdiction," and "appellate jurisdic"tion," respectively. The fourth clause of the draft related to the U. S. inferior courts and the nature of the

In

"jurisdiction" which they might receive. This clause was struck out and no clause whatsoever was inserted in the constitution mentioning the jurisdiction of the U. S. inferior courts. Thus the frame of the whole judicial article of the draft was changed by the alteration of the first, and the omission of the fourth, of its jurisdiction clauses. From what has been said above, it seems that the fear of an extrajudicial jurisdiction of the Supreme Court had a good deal to do with breaking the chain of four jurisdiction clauses found in the draft. That fear has consequently a place in the history of the formation of the constitutional text, which deserves the fullest investigation.

In conclusion, it is contended that the foregoing shows that it is correct to affirm proposition 4th on page 294, namely, that the Framers actually intended that the U. S. Supreme Court should be competent in all litigations before it, to decide upon the questioned constitutionality of U. S. laws, and to hold the same void when unconstitutional.

CHAPTER XXXVI.

Of the intentions of the Framers concerning appeals from the state judiciaries to the U. S. Supreme Court.

No. 1. Of the 5th and 6th propositions concerning the Framers' intentions.

No. 2. Examination of the debates and proceedings of the convention, in order to ascertain their intentions concerning the said propositions.

No. 3. Of certain views of Chief Justice Marshall on pages 376, 377 of 6 Wheaton.

No. 4. Further examination of the debates of the Framers made requisite by the said views of Marshall.