The Washington herald., 1907-12-01
By HAMILTON GAY HOWARD.

Mr.. Chief Justice Walter Clark. of the
Supreme Court of the State Of North
Carolina, not long since published in the
columns of the New York Independent
an elaborate article attacking the as
sumed prerogative Of the Supreme Court
Of the United States TO decide upon ques-
tons Of the constitutionality Of acts OF
Congress when duly brought before that
august tribunal for adjudication The
writer has as yet seen no reply to this
attack. in the columns Of newspapers
that have come undar his observation.
and. therefore. begs through this indie
pendent journal to present before its
readers a plea as that courts self-con-
stituted agent.
Justice Clark uses, in part, the follow
ing language:
In the great convention OF 17S7. when
the Constitution Of the United States
was framed. proposition was made that
the judges should pass upon the consti-
nationality of the acts Of Congress. This
was defeated June 5. receiving the vote
Of only two States. It was renewed June
/ 6, and again July 1. and finally, for the
fourth time. IL was urged on the 18th
OF August. but though it had the power
full support of Mr.. Madison and James
| Wilson, at no time did 1t receive the votes
of more than three States.
THE subsequent action OF the Supreme
Court in assuming the power to declare
acts Of Congress unconstitutional is with
out line in the Constitution to authorize
/ it. The Constitution cited carefully and
/ fully the matters over which the courts
should have jurisdiction. There is moth
/ ing, and after the struggle four times re-
peated and the persistent refusal to vote
/ jurisdiction, there could be nothing indi-
eating any power to declare an act Of
! Congress unconstitutional or void"
Quotes MARSHALL as Authority.
He asks: "Of what avail. for example.
will be the rate regulation bill. If five
/ lawyers. holding Office for life. not elected
/ by the people. shall see fit TO destroy IL.
as they did the income tax law Is such
4 government a reasonable one2"
! l pass by his political alimadversions,
and shall content myself with simply pre-
senting a few relevant passages from one
Of the oldest and best known decisions
/ Of this highest court IN the world, de-
livered by its most profound jurist and
ablest Chief Justice, John Marshall, in
the case Of Marbury VS.. Madison. q
Cranch. 1877, A d. 1900
This case was brought before the United
States Supreme Court as an original
proceeding-not as an appeal-to compel,
by mandamus. the Secretary Of State
Games Madison) 10 cause to be delivered
certain commissions 10 justices Of the
peace in the District of Columbia. who
had been nominated by the preceding
President John Adams) to said Offices:
they had been confirmed by the Senate.
the commissions had been signed by
President Adams. and the United States
seal was duly affixed thereto. Madison.
the new Secretary of State, refused 10
deliver the commissions. The action was
brought on motion to show cause why
the writ OF mandamus should not issue
The following were the questions IN the
case, as stated by the Chief Justice:
''Ffst-Has the applicant a right to the
commission he demands?
'Second-If he has a right, and that
right has been violated, do the laws of
his country afford him a remedy?
''Third-1f they do afford him a remedy.
is IT a mandamus issuing from this
court?"
Constitution supreme Law.
After paFticularizing as to the case in
hand. stating that IF he has been ap-
pointed, the law continues him in office
for five years, and he is entitled to tho
possession OF these evidences OF Office
which. being completed. became his prop
erty. The commission is not nee
essarily the appointment, though conclu-
sive evidence of il. When the seal
is affixed the appointment is made, and
the commission is valid" &c. the great
chief justice generalizes as follows:
1T Is .emphatically the province and
duty OF tie judicial department 10 say
what the law is Those who apply the
rule to particular cases must Of necessity
expound and interpret that rule. If two
laws conflict with each other the courts
must decide on the operation Of each.
so If a law be in opposition TO the
Constitution, If both the law and the Con-