means. 45
And such were the means provided for in the fed-
eral constitution.46

The people of the original thirteen states,47 having, under "a
firm league of friendship," 48 achieved their independence by
successful revolution, desiring to enter into a "more perfect
union," upon "reflection and choice," established a complex
polity, dividing the attributes of sovereignty between the state
and federal governments, vesting in the former the powers of
national sovereignty and reserving to the latter the powers of
municipal sovereignty, and imposing upon the states import-
ant limitations; and declared that "this constitution, and the
laws of the United States which shall be made in pursuance
thereof, and all treaties made or which shall be made under
the authority of the United States, shall be the supreme law of
the land, and the judges in every state shall be bound thereby,
anything in the constitution or laws of any state to the con-
trary notwithstanding," and that "the members of the several
state legislatures, and all executive and judicial officers, both of
the United States and of the several states, shall be bound by
oath or affirmation to support this constitution;" 49 and vested
in the supreme court appellate jurisdiction in cases in law and
equity arising under the constitution, laws and treaties of the
United States, intending that this appellate jurisdiction should
be exercised over the state courts, and that all provisions in
the constitution of any state, and all laws enacted by any state
legislature, which should be found by the supreme court, in
the exercise of its jurisdiction, to be repugnant to "the su-
preme law of the land," should be held and declared null and
void. It was only in this way that the supremacy of the fed-
eral constitution could be maintained, and the Union preserved.
Had not this principle been incorporated in the constitution,
there could have been no uniformity in the construction of its
provisions; there would have been as many different construc-
tions as there were state courts of last resort, and it would
have been both possible and practical for the states to have

45 Federalist, No. LXXX; Co-
hens v. Virginia, 6 Wheat. 264, 448
(5:257); Re Debs, 158 U. S. 564,
600 (39:1092); Ableman v. Booth,
21 How. 506, 526 (16:169).
46 U. S. Const. art. III.

47 McCulloch V. Maryland, 4
Wheat. 316, 403, 404, 405 (4:597,
600, 601); Scott v. Sanford, 19
How. 393, 633 (15:691).

48 Articles of Confed. art. II.
40 U. S. Const. art. VI.

subordinated the federal constitution, laws and treaties to their own laws, to have annulled the limitations imposed upon them by that instrument, and to have effectually defeated the entire scheme of government embodied in it.50 The appellate jurisdiction of the supreme court over the judiciary of the states in cases involving a federal question, and the power of that court to hold and declare void state laws when found by it to be in contravention of the federal constitution, and the laws and treaties made pursuant to it, were not an after-thought, fortuitously fallen upon subsequently to the organization of the government; but it was charged by the enemies, and admitted and justified by the friends of the constitution, while that instrument was pending before the country, that its adoption would be followed by such results.51

§ 395. The federal judiciary necessary to restrain federal legislation within constitutional limits.-The government of the United States, although sovereign and supreme within its appropriate sphere of action, is, nevertheless, a government of delegated, limited and enumerated powers, defined in the constitution, and neither its executive, legislative, nor judicial departments, can lawfully exercise any power in excess of the limits defined in the constitution; the provision that the "constitution, and the laws which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land," is just as binding on the federal government, as it is on the states, and any legislation of congress not authorized by the constitution, or in contravention of it, is absolutely null and void.52 But, in order to restrain congress within con

50 Federalist, Nos. XXII, LXXX, LXXXI and LXXXII; Cohens v. Virginia, 6 Wheat. 264 (5:257); Martin V. Hunter's Lessees, 1 Wheat. 304, 382 (4:97); Sturges v. Crowninshield, 4 Wheat. 122, 209 (4:529); McCulloch v. Maryland, 4 Wheat. 316, 437 (4:579); Dartmouth College v. Woodward, 4 Wheat. 518 (4:629); Gibbons v. Ogden, 9 Wheat. 1 (6:23); Brown v. Maryland, 12 Wheat. 419 (6: 678); Ableman v. Booth, 21 How. 506, 526 (16:169); United States

v. Tarble, 13 Wall. 397, 413 (20: 597).

51 Federalist, Nos. LXXX. LXXXI and LXXXII; Cohens v. Virginia, 6 Wheat. 264 (5:257).

52 McCulloch V. Maryland, 4 Wheat. 316, 437 (4:597); Ableman v. Booth, 21 How. 506, 526 (16: 169); Scott v. Sandford, 19 How. 393, 633 (15:691); Marbury v. Madison, 1 Cranch, 137 (2:60); Hodges v. United States, 203 U. S. 1-38 (51:65).

stitutional limits, and to avoid any legislation in excess of its power, it was necessary that there should be a tribunal vested with power, in the last resort, to pass upon the validity of such legislation, and, accordingly, the constitution vested in the supreme court final appellate jurisdiction in all cases arising under the constitution, laws and treaties of the United States. whether such cases originate in the state courts or in the inferior courts of the United States, and, as the final appellate tribunal, it is the duty of the supreme court to declare void and refuse to execute any act of congress brought before it and found to be in contravention of the constitution, and the court has, in a number of cases, exercised this power, and declared void congressional legislation, because in excess of the power conferred by the constitution upon the government, or in violation of some constitutional limitation imposed upon it for the protection and security of the life, liberty or property of the citizen.53 The judicial power of the United States covers every legislative enactment of congress, whether it be made within the limits of its delegated powers, or be an assumption of power beyond the grant of the constitution; and this judicial power was justly regarded by the founders of the government as indispensable, not merely to maintain the supremacy of the constitution and laws of the United States, but also to guard the states from any encroachment, by the general government, upon their reserved rights.54

§ 396. The federal judiciary necessary to peacefully maintain the supremacy of the federal constitution and the authority of the federal government.-In order that the scheme of government proposed and submitted by the constitutional convention should be free from the defects and deficiencies of the

53 United States v. Harris, 106 U. S. 629 (27:290); Civil Rights Cases, 109 U. S. 3, 62 (27:836); United States v. Reese, 92 U. S. 214, 256 (23:563); Ex parte Garland, 4 Wall, 333, 339 (18:366); Justices v. United States, 9 Wall. 274, 282 (19:659); United States v. Klein, 13 Wall. 128, 150 (20: 519); Boyd v. United States, 116 U. S. 616, 641 (29:746); Scott v. Sanford, 19 How. 393, C33 (15: 691); United States v. De Witt, 9

Wall. 41, 45 (19:593); United States v. Fox, 95 U. S. 670, 673 (24:538); United States v. Steffens, 100 U. S. 82, 99 (25:550); Pollock v. Farmers' Loan & Trust Co.. 157 U. S. 429, 654 (39:759), S. C. 158 U. S. 601, 715 (39:1108); Federalist, No. LXXVIII; Hodges v. United States, 203 U. S. 1-38 (51:

65).

54 Marbury V. Madison, 1 Cranch, 137 (2:60); Ableman v. Booth, 21 How. 506, 526 (16:169).

"firm league of friendship" which existed under the articles of confederation, and should be effective and legally and politically competent to the full realization of the hopes of the country, the statesmen and patriots who framed and adopted it deemed it essential (1) that the constitution and valid laws and treaties of the United States, which were to be operative throughout the Union, should be the supreme law of the land, and that no state should be able to defeat their operation within its territorial limits, (2) that the general government should be supreme within the limits of its appropriate sphere of action, and strong enough to execute its own laws, without interference from the states, and (3) that, in order to peacefully maintain that supremacy, it was necessary that the general government should be clothed with judicial power equally paramount in authority to carry into execution the constitution, laws and treaties, and vested with the absolute right of decision in the last resort in all cases of a conflict between state and federal authority; and, accordingly, this great principle was embodied in the constitution, and the supreme court was given final appellate jurisdiction over the courts of the states in all cases arising under the constitution, laws and treaties of the United States. It was, indeed, essential to the very existence of the federal government, as a government, that it should have the power of establishing courts of justice, altogether independent of state power, to carry into effect its own laws; and that a tribunal should be established in which all cases which might arise under the constitution and laws and treaties of the United States, whether in a state court or a court of the United States, should be finally and conclusively decided.55

§ 397. The federal judiciary a peaceful means of removing obstructions to interstate commerce.-Whilst the United States may rightfully use physical force to remove and prevent obstructions to the freedom of interstate commerce and the car

55 Ableman v. Booth, 21 How. 506, 526 (16:169); United States v. Tarble, 13 Wall. 397, 413 (20: 597); Cohens V. Virginia, 6 Wheat. 264 (5:257); Martin v. Hunter's Lessees, 1 Wheat. 304 (4:97); Dartmouth College V. Woodward, 4 Wheat. 518 (4:629);

Gibbons v. Ogden, 9 Wheat. 1 (6:23); McCulloch v. Maryland, 4 Wheat. 316 (4:579); Brown v. Maryland, 12 Wheat. 419 (6:678); Fletcher v. Peck, 6 Cranch, 87 (3: 162); Federalist, Nos. LXXX, LXXXI and LXXXII.

riage of the mails, when such obstruction has been created by lawlessness and violence, and may, for that purpose, when the emergency arises, call into action the army, yet the right to use force does not exclude the right of the government in such cases to resort to its own courts for a judicial determination of the questions of right and wrong involved, and for a peaceful enforcement of that determination when made, and also for a prevention, by the extraordinary processes of the court, of a recurrence or continuance of such obstructions; and for such a choice of peaceful means and instrumentalities for the execution of its powers, the government is to be praised rather than blamed.5

§ 398. Relation of the federal judiciary to the national peace. Inasmuch as the constitution devolved upon the federal government the powers and correlative duties and responsibilities of national sovereignty, one of the most important of which is the conduct of the relations of this country with foreign nations, and "as the denial or perversion of justice by the sentences of courts, as well as in any other manner, is with reason classed among the just causes of war," it inevitably follows "that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned," such as cases arising under treaty stipulations, suits in admiralty, prize causes, and suits against ambassadors, other public ministers and consuls, and crimes committed on the high seas.57

§ 399. Relation of the federal judiciary to domestic tranquility and peace.-The creation of the federal government by the constitution was not merely to guard the states against danger from foreign nations, but mainly to secure union and harmony at home-to "insure domestic tranquility;" for if that object could be attained, there would be but little danger from abroad; 58 and, with that end in view, the supreme court was given original jurisdiction of controversies between two or more states, having in mind, no doubt, the subject of controverted boundaries between different states, which had been,

56 Re Debs, 158 U. S. 564, 600 (39:1092); United States v. TransMissouri Freight Ass'n, 166 U. S. 290, 374 (41:1007).

57 Federalist, No. LXXX; Fair

fax v. Hunter, 7 Cranch, 603 (3: 453); Martin v. Hunter's Lessees, 1 Wheat. 304 (4:97).

58 Ableman v. Booth, 21 How. 506, 526 (16:169).