Evening star., 1937-02-06


ton to deprive the Supreme Court Of
Jurisdiction over the alteration.
In connection with activities Of the
military Lincoln himself had engaged
in a tug-of-war with Chief Justice
Taney, who was acting in his capacity
as a member of the Circuit Court as
justices were required to do in those
days.
Six weeks after the opening gun
Of the Civil War had been fred,
John Merryman, claiming to be q
Confederate lieutenant, was arrested
in Baltimore by the military on
charge of aiding the enemy. He OBJ
tanned q writ of habeas corpus from
Taney to obtain his release from
Fort McHenry.
Acting on instructions from Lin
coin, the officer in charge Of the
prisoner declined to obey the writ.
Taney ordered his arrest for con-
tempt, but the officer sent to carry
out the command was refused admiS-
sion to the fort.
Checkmated in that direction. the
Chief Justice wrote an opinion hold
ing the President cannot suspend
the privilege of the writ Of habeas
corpus nor authorize any milit y
officer to do So" He instructed the
clerk OF the Court > send q copy to
Lincoln.
Ruling Openly Opposed.
1t was the expressed belief Of the
President that, during a war. what he
considered to be the requirements of
the emergency were supreme. For
some time after that the administra-
ton took series Of steps in direct
contradiction to Taney's ruling.
In the battles between Jefferson,
strong advocate Of State rights. and
Marshall, leading spokesman for a
powerful national government. one
of the prime sources OF discord had
been the decision in the case OF
Marbury VS.. Madison, in which the
Court asserted for the first time that
1t possessed the right to invalidate an
act Of Congress.
At the time. however, that phase Of
Marshall's 1903 ruling was little no.
ticed. Principal interest ce tered
upon his assertion that the tribunal
had power to issue writ Of man
damus against James Madison, Jef-
ferson's Secretary of State. directing
him to deliver commissions as justice
of the peace to William Marbury Of
Washington and others.
While the litigation was of no con-
sequence, Marshall made the case
famous by expounding the thesis that
the power of a legislative body was
limited by the Constitution and it was
the duty of the Supreme Court to act
as arbiter in any disputes.
Jefferson was indignant at the
opinion. regarding it as IAN attempt
in subyersion of the independence
OF the Executive and Senate within
their peculiar departments"
His opposition was increased by
the belief that Marshall had gone
out of his way to claim enlarged
functions for the tribunal. The
declaration as to the mandamus was
OF no practical effect, since the court
held that the act of Congress giving
1t jurisdiction was invalid. Jefferson
contended Marshall should have linn
tied the decision to that phase of
the case.
Wholesale Assault Launched.
There followed what the Federalists
called a wholesale assault on the
judiciary by the JefferSonian party.
then called Republicans and now
Democrats. Amid the furore. i'm
parchment charges were brought by
the House in 1905 against Samuel
Chase. an associate justice.
Chase had aroused the ire of Jeffer-
son by taking an active part, while
on the court, in supporting John
Adams for reelection and by criti-
cizing the new administration in
charging his juries Twenty-three
Senate votes were required to convict
and 1s was the highest obtained
against him on any count. Thus he
was acquitted.
During the next few years Marshall
handed down a series OF opinions
which greatly increased the power Of
the Federal structure and overturned
a variety OF State legislation.
BY the end of 1925, the court had
held unconstitutional laws Of 10 States.
Each decision was followed by
furry OF invective from the affected
area and by champions Of State rights
in Congress.
Many proposals were made then,
as in every period of heated con-
troversy. for shearing away some of
the courts power. Aside from those
that duplicated previous suggestions,
they included giving the Senate the
right to review a Supreme Court oe-
cislon in cases involving . State law
rulings by popular vote.
Jackson Term Exciting.
In 1929 Andrew jackson stepped
into the White House to the accompa-
niment Of great tumult and shouting.
Before his eight years were over the
Court had passed through another
peak period in its eventful career.
One controversy pertained to the
title Of Cherokee Indians to land in
Georgia, under a treaty with the
United States. The Federal Govern
ment was supposed to have given the
State q clear title but had failed to
do so. Declaring that the United
States lacked the authority to bind .
State by q treaty with Indians, Geor-
gia passed a law for division Of the
territory.
In response to petition by the
Indians for Federal troops to guard
them, Jackson said that "the President
Of the United States has no power to
protect them against the laws Of Geor-
gia" At that time he was q strong
advocate of state rights.
This case was carried to the
Supreme Court, but it ruled it had no
Jurisdiction.
While this dispute was at its height.
a Cherokee named Corn Tassel killed
another Indian and was sentenced to
death hu Caarnio o,,fIprifine ut,A