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of disapproval, for no court in England since Tressilian's day has refused to obey an Act of Parliament.
Prior to the American Revolution, the Acts of our Colonies were sent home to England, where they were allowed or disallowed by the Privy Council, for in this way the Mother Country held its control over the Colonies. After the acknowledgment of the Independence of the Thirteen Colonies, and before our Federal Convention met at Philadelphia, the courts of four States—New Jersey, Rhode Island, Virginia and North Carolina—had assumed to themselves the power formerly exercised by the Privy Council in England. This met immediate and strong disapproval, and in Rhode Island the Judges were “dropped.” These decisions were well known to the members of the Convention at Philadelphia. Mr. Madison and Mr. Wilson favored the new doctrine of the “paramount Judiciary” as a safe check upon legislation, for government by the people was new and the property-holders were fearful of the excesses of an unrestricted Congress.
The attempt was to get the Judicial veto into the Federal Constitution in its least objectionable shape, by submitting the Acts of Congress to the court before the final passage of an Act, but even this failed, for, though four times presented by these two very able and influential members, this suggestion of a “Judicial Veto” at no time received the votes of more than one-fourth of the States. There can be no doubt that if such power had been inserted the Constitution would never have been ratified by the several States.
It is true that the Constitution does prescribe that the Constitution of the United States, and the Acts passed under the authority thereof, shall be supreme over the State Constitutions and laws. This is necessary in any Federal government. This does not, however, confer upon the Supreme Court the power to set aside Acts of Congress, like the Income Tax and other statutes, not involving the boundary line between State and Federal jurisdiction. The very fact that this provision was put into the Federal Constitution shows that the Convention did not intend to confer upon the court the unlimited power claimed later under “Marbury v. Madison.” Aware of this defect, the court since the war has sought to found its jurisdiction to nullify Congressional action upon the Fourteenth Amendment. It has been well said that that Amendment, which was intended for the protection of the negro, has failed entirely in that purpose, but has become a very tower of strength to the great aggregations of wealth. Not only no force can be justly given to the construction placed by the court upon the Fourteenth Amendment, from the knowledge of the history of its adoption, but the words used cannot fairly be interpreted as they have been. “Due process of law” means the orderly proceeding of the courts, and the "equal protection of the laws” was never intended to give to the Federal Courts irreviewable supremacy over Congress and the President.
It is not too much to say that the ingenious reasoning in Marbury v. Madison and the construction placed upon the Fourteenth Amendment have had the same origin in the desire of the court to amplify its jurisdiction and of the great interests to hold the court as a shield between them and the action of Congress and the Legislatures when they have not succeeded in defeating legislation by fair means or foul.
But, as a last resort, it is urged, must not Congress and the Legislatures obey the Constitution? Most certainly. The members take an oath to do so, and there is as much patriotism and, considering the larger size of legislative bodies, a greater aggregate intelligence in them than in the courts. But it does not follow that if a Legislature, or Congress, misconceives or violates the Constitution, that the court has the power to nullify their action. The only supervising control of the Legislative given by the Constitution is the veto of the Executive, not of the court, and that executive veto is only suspensive. If the Legislature
still insists, the supervising power is in the people in the election of Senators and Representatives who will put a more correct construction on the Constitution.
It must be remembered that there is no line in the Constitution which gives the courts, instead of the people, supervision over Congress or the Legislature. There is no constitutional presumption that five judges will be infallible and that four will be fallible. If the Legislative and Executive departments of the government err, the people can correct it. But when the courts err, as they frequently do, for instance, as in Chisolm v. Georgia, or in the Dartmouth College case, or in the Income Tax case—not to mention others,—there is no remedy except by the long, slow process of a Constitutional Amendment or by a change in the personnel of the court, which is necessarily very slow when the Judges hold for life as they do in the Federal Courts.
No one has ever questioned the ability and integrity of Chief Justice Marshall. Like other men, he saw the world from his own standpoint and from his environment and with the prepossessions of his day. He had small faith in the capacity of the people for self-government. He believed in a strong central government and distrusted the States. He believed that the function of government was the protection of property rights which he thought jeopardized by the rule of the people who were mostly without property. At that time the experiment of popular government was untried and the people were uneducated. Moreover, he was a strong man, rugged and earnest, and, like most strong men, he annexed all the jurisdiction he could lay hands upon. While his course upon the Bench was in many respects of inestimable good, in such decisions as Marbury v. Madison, the Dartmouth College case, and others, he went beyond the necessities of the occasion and certainly beyond, far beyond, the authority conferred on the courts by the Constitution. Smaller men have extended his doctrines to their logical conclusion in more recent cases which
have alarmed the public conscience, and a restoration of the jurisdiction of the court to its true limits is a necessity. As that jurisdiction has been defined in more recent cases, all legislation now depends for its validity, not upon the will of the people as expressed through Congress and State Legislatures, but upon the economic views of five lawyers to whom “due process of law” and “equal protection of the laws" mean simply what they believe is for the real good of the people. In their hands the power of the courts over legislation is neither more nor less than an irreviewable veto upon any expression of the public will that does not meet their approval.
Let us go “back to the Constitution” as it is written. Let Congress and the Legislatures legislate; subject to the only restriction conferred by the Constitution—the suspensive veto of the Executive—and with further supervision in the people alone, who can be trusted with their own government-else republican form of government is a failure.
Under our plan of government, the people alone are sovereign. Judges, Governors, Presidents, members of Legislatures and members of Congress are all alike servants of the people. No place is given in any Constitution to either department to supervise the action of the others. The sole supervisional authority is in the people. It has nowhere been given to the courts.
The love of us lawyers for precedent, and a feeling of professional pride that five lawyers on the Supreme Court can say to the other departments of the government, nay, to the people themselves, as has been asserted, “Thus far shalt thou go, and no farther," appeal to us. But this is the defiance of the servant to the master, the challenge of the creature to its creator.
There is no room in a republican form of government for “Judicial Hegemony."
WALTER CLARK. Nov. 16, 1915.
RALEIGH, N. C.
A COURT MARTIAL FIFTY YEARS AGO. In 1864, and for some time before, the United States had a prison camp on Johnson's Island in Lake Erie, near Sandusky, Ohio, in which were kept, prisoners of war, many Southern soldiers. The armed U. S. S. Michigan was kept in commission nearby. It seemed to the Confederate authorities to be a feasible scheme to capture the Michigan and set free the prisoners of war. Accordingly, the President, Jefferson Davis, gave orders and instructions to make the attempt.
Amongst those so commissioned were Bennett G. Burley, a Scotchman from Glasgow, who died but the other day, and John Yates Beall. Burley was the famous war correspondent–“Burleigh”—and the two had been comrades. Beall was a native of Virginia, born January 1, 1835, who was well brought up-a member of a most respectable family. He studied for three years without graduating at the University of Virginia, and was a devout member of his church and exemplary in his life. When the Civil War broke out he joined the forces of his native state and fought in her cause. He was seriously wounded
i Those interested in Beall will find a rather full account of his life, etc., in a work published in Montreal.
"Memoir of John Yates Beall. His Life; Trial; Correspondence; Diaries, and Private Manuscripts Found Among His Papers; Including His Own Account of the Raid on Lake Erie. Montreal: Printed by John Lovell, St. Nicholas Street. 1865."
A crown 8vo, written anony. mously. The writer is known to have been Judge Daniel B. Lucas,
Beall's close personal friend and fellow-student.
An account from a somewhat different point of view is given in Appleton's Cyclopaedia of American Biography. See also The Americana. In these books he is called John Young Beall, but this is a clear mistake; his second name was Yates (his mother's family name).
(I am indebted to Mr. John S. Patton, Librarian of the University of Virginia, for some of the facts, and also for the information that the name was pronounced "Bell.")