The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1898-08-14
The Federal Judiciary.
Jefferson Denounced the Federal Judiciary as "A Thief of
Jurisdiction"

THE Federal judiciary is natural
and from the point of view of the mod
ern current of Federal decisions, a neces-
sary element in our Federal government
''And yet not every Federal govern
ment possesses Federal courts. The
kingdom Of Great Britain and the king
dom of Ireland with the empire of In
dia and Canada. Australia, and other
British provinces form the British en-
pire, but England. Scotland. Ireland
Canada. Australia, India, has each its
separate courts. and there is no court
with jurisdiction over the British EN-.
pire. Prussia, SaxOny, Bavaria. and 9th
er German kingdoms have united into
one German confederate empire, but
there is no imperial German court To
constrne the. statutes of the imperial
Parliament.
I'm fact. so unguestioned is now the
power of the Federal judiciary to annul
Federal statute on the ground of its
unconstitutionalty that we sometimes
forget that this is the only Judiciary in
the world at any stage of its history
which has the power to blot n country s
laws from her statute-bookS. This
power was probably not intended TO he
conferred upon the Federal judiciary by
the majority Of those who framed the
Constitution. Indeed when the Federal
courts first exercised this power and
declared it rightful very many of the
best and wisest looked upon it as an
usurpation ultimately fatal to free gov
eminent: while Thomas Jefferson. then
in the mellow wisdom of old and hon
ored age. declared that it placed the
people under the despotism of an oil
garchy'
'In every government ultimate power
must reside somewhere. In England 1t
is in the Parliament. for its power to
pass laws is supreme and no court San
declare them void or Illegal. In Russia
it is in the Gar, for his will is the only
law and the imperial ukase can neither
be disobeyed or questioned
I'm the United States. where resides
this power? In the people, we might
say, accustomed as we are to think of
the citizen as the sovereign. But let
us see. The people OF the State choose
their legislature which makes their
laws. These laws may be sanctioned by
the courts of the State. But the Federal
judiciary may pass upon them and de-
clare them void because against the
Constitution of the United States. The
people choose their national representa-
tives and senator's. and Congress may
enact statutes which the people approve
But the Federal judiciary may abrogate
these laws and prevent their enforce
ment If deemed contrary to the Federal
Constitution. The governors and the
President may desire to execute the will
of the people as expressed in the State
and national statutes framed by the
peoples chosen agents. But the Fed
eral Judiciary may set aside these stat
utes and prevent the State and national
executive from enforcing them. Changes
may be attempted in the fundamental
law Of the land and majority in the
legislatures of three-fourths Of the
States may ratify constitutional amend
ments passed by Congress i'm order TO
change the Constitution so as to carry
into effect the undoubted will of n vast
majority of the people. But the FEEDER II
courts may declare that these constfu-
fional amendments have not been legally
passed or may construe them away. and
from such judicial declaration there is
no appeal
The Federal judiciary. therefore. is
the sole repository of ultimate power IN
this republic. and the handful Of men
who WELD this power may WELD it as
long as they live and choose to do so.
FOR this same judiciary may avoid one
OF its members expulsion from power
by impeachment by adjudging the i'm
parchment proceedings to have been IL
iegai. Ana not even insanity terminates
Ihls power. for. as was once nitifuliy
Illustrated In our own circuit, Il dement,
ed Federal judge is still the Judge
Death is the only brake upon this jugger-
naut. But 1T is a very slight and fleet
ing brake, for men who hold office for
a ap1lr III
successors promptly take their places
and the wheel grinds on as before.
1T may be conservatiyely said that
no greater power has ever been vested
in any officials or in any department. of
any government than is now exercised
by the Federal Judiciary. It is. there
fore, of the utmost Importance that these
powers should be exercised with the
greatest caution and that the public at
large should keep upon the possessors
of such power an eye jealous of the first
encroachment upon liberty
In an able apology for the Federal
courts tCriticism of the Federal Judi
ciary' - Am. Law Rev., p G43) United
states circuit Judge William III. Taft,
himself responsible for some of these
usurplng decisions. alludes to what he
terms 'Jefferson's severe words concern.
ing the Federal judiciary. and ouotes
Jeiferson's 'epithet' in which no do
nounced the Federal Judiciary as n thief
of jurisdiction He alludes TO the fact
that Jefferson's criticism was called
forth by the decision in Cohens VS.. Vir-
ginia, declaring the power Of the Federal
court to reverse the decision of State
Supreme court on the question whether
Il State statute violated the Federal
constitution doctrine which, though
accepted now. was not expressly given
by the Federal Constitution, and which
when first promulgated was considered
by the weight of contemporary opinion
as palpablc usurpation of power by the
Federal courts. 1t is doubted whether
the Constitution of 1899 would have
been ratified by majority Of the States
If it had contained n clause giving such
power to the Federal courts. 1t will be
remembered that Andrew Jackson while
President of the United States. many
years after this doctrine had become
settled by repeated adjudications of the
nIf tot