The Indianapolis journal., 1890-02-05


American independence fastened upon the idea
of substituting for the loose compact of the Con-
federation n union OF the States based on the alb
sOlute sovereignty Of the people and the surren-
der by the separate States of all powers needed
TO constitute q National government without
trenching on the rights reserved TO the states,
the root and groundwork of this complex idea
was the establishment OF some system by which
the organic law OF the United States. and the
statutes of their Congress should be the supreme
law OF the land, binding everywhere and en-
forceable everywhere. To their minds it became
clear that III justice is the basis of society IL must
be so administered as TO control society by oper-
ating upon al Its members, and where separate
states should agree to carve out or their own
sovereignty the powers needed to set up govern
ment for all, the grant OF powers must be ample
10 make their exercise effectual. While
ine power OF eaeh state TO punish vioiauoHs ;ts o,
citizens and maintain all the ends OF government
within It's own territory must be exercised by
state courts, and judges, and officers, wltnout
interference, like absolute power in the federal
government mnst go hand in hand with the dele,
cation by the State of the right to regulate All
those matters which were 10 come within the
circle OF the enumerated powers OF the United
states. The national government must be as
competent to punish crimes forbidden byits laws
and TO enforce the judgments declared by its
courts rs are the States within their separate
boundaries In respect to their own local laws
and the jurisdiction OF their local courts. Moro
than this, the true sphere of the national turis-
dictiOn having been once established, no state
should have power to make any law in conflict
with the organic law, or with the statutes of the
whole realm, and, still further, the national Con-
gress itself should have no power To invade the
Constitution by any enactment contravening It's
In the light of the researches stimulated by
the revival Of interest in American ideas which
marks this centennial epoch, we have come to
see how largely the principle of growth and de-
velopment which inheres in every onward move
of our organic law. The federal Consultation
was. In great part, the result OF what haC gone
before in the making of the colonial local gov
ernments. and OF the States and Of the confed-
eracy. 1t was the capitalization of elements,
which il needed only the agitation OF supreme
crisis to set in foreordained and symmetrical
shape. Much of the work OF the convention
was mere adaptation and adjustment OF exist
ing methods under well-recognized and familiar
principles.
But in the matter OF the judicial power, what
the trainers of the Constitution did was specially
their own work, original and unique. The germ
was doubtless in that sense OF justice and OF the
preservation and enforcement OF individual
rights which had taken such firm root in the
earliest American communities hut no local
growth bad ever been the equivalent In any sep
arate sphere, or the type in any attempted or
ganizatIon, OF the complex and farreaching sys-
tenn set in order by the Constitution. This work
not adaptation, but creation; the workmen
were not only experts but inventors. They came
together with full. and long and complete prep
hands, gave the stimulus and inspiration for an
execution which outran their first intention, but
was not beyond their wisdom.
1t was the standing sneer OF British statesmen
that SO many of the lead ing colonists were law
yers. each one thinking himself competent to
and ready to join issue on every new assertion OF
their power and the colonists who were not law
yers fanoying themselves statesmen, crazed with
what Shrewsbury, Pitts Irish NicerOy, described
to him the "mania for state-making."
These colonial jurists and publicists had or
ganized revolution on the basis of constitutional
right; they had brought out the chaos of revolt
the order of the Confederation, the first crude
conception OF the Union OF the States they had
communities in rebellion against a sovereign in
to sovereignties In their own right; they had
waged successful war and had made an honor
able peace and during all these years of strug-
gle and vicissitude they had been profound stu
dents of the problems Of liberty as secured by
Never @ since % &c" the Hebrew iaW-Siver I % pondered
on the plains OF INDIAN and in the shadow OF
Horeb, the deliverance and leadership of an en-
slaved race, had there been such period OF
preparation and of profound insight into human
government and human rights. The revolution
airy leaders had explored all the theories OF
the search for the pattern and ideal OF free gov
ernment and above all they had sifted through
the web and mesh of their own thought and eX-
perience the elements of the great constitutional
system, 1.-THE mirror OF free government" OF
what was still to them In spite of its expressions,
They meditated on these things in the night
watches; while they were musing the fire burned
the inextinguishable fire OF patriotism which,
In those lofty souls, flashed from heart to heart
and mind TO mind, as from peak to peak in some
beleagured land the midnight sky is lighted with
the rally Ing fires or freedom.
The most striking element in the powers grant
ed is that which clothes the Judiciary with the
right to annul legislative enactments. Even as
TO this power it has been said that the Supreme
Court has no prototype in history. Judicial
tribunals have existed as component parts of
other federal systems, but the Supreme Court of
the United states is the only court in history
that has ever possessed the power to finally de-
termine Ter the validity OF nanonai law But IN
the clause next following the judicial power is
extended "to controversies between two or more
States"
This brief but comprehensive waiver on the
n SfateS n
from judicial power and this mandate of the
ganic law that the judicial powe" created by the
themselves in all their controversies with each
other, mark the highest level ever attained in the
progress OF representative government. They
have justly excited the wonder and admiration
of the most int elgent observers OF our constitu-
tional system.
Tocqueville says: "In the nations OF Europe
the courts of justice only called upon to try
the controversies of private individuals: but the
Supreme Court of the United States summons
john Stuart Mil declares this substitute in the
organic law for war and diplomacy as the means
example Of what Is now one of the most promi.
nent wants OF civilized society, real Inter
national Tribunal"
What the founders intended and what they ac-
c0mplished was something wholly different from
the creation of tribunal to coerce or control the
Exercise OF their rights in t6e reruIaton of that
vast department OF internal government, which.
for want of a better name, We call the "Police
IOWtis Auoy ncdlO 10 CEcdtcp duu tnty Crtdttu,
a court, which, by its supreme authority acting
upon suitors who should invoke it's power and
executing it's DEGREES by due process of law,
should be able to annul and make void any and
every enactment by which Congress any State
Legislature or constitutional convention should
infringe upon the Constitution and laws of the
United States. They meant also to provide CON-
pete system for the administration of justice be-
tween all suitors standing in such relations of
right or Of citizenship as to make their contrO-
yersies properly cognizable by the federal courts
In providing for the independence OF the judici-
ary they kept IL free from all share in legislation
and from all dependence on the Legislature for
system Of party government which must needs
prevail partisanshp and politics would be the
controlling force In legislation, and they knew
how easily politics are associated with corrup-
tion. The maxim of Walpole that "every man
has his price, had borne its baneful fruit in the
can Constitution, with higher ideal of govern
ment, and with a civic virtue even worthier of
praise than the wisdom which won for them the
worlds applause, strove to give this ideal form,
and substance, and perpetuity. Above all, they
sought II possible to commit to stainless hands
the unstained sword OF justice.
The Hon. Henry Hitchcock then spoke on
"Powers of the Supreme Court and Those
of the Constitution" He was followed by
the Hon. Thomas j. Semmes, of Louisiana
who spoke on the Personal Characters of
this address brief intermission was taken.
after which there was more music and then
the Hon Edward j. Phelps. of Vermont,
delivered lay address on "The Supreme
Court anu the Sovereignty of the People"
Justice Field, on Behalf the Court.
Chief-iusfice Fuller the en int uced Jnst