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Political Theories of the Cupreme Court from 1789–1835

Published online by Cambridge University Press:  01 August 2014

Charles G. Haines
Charles G. Haines
Affiliation:
Ursinus College
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Extract

Prior to the time of the organization of the national government under the Constitution of 1787 the province of a court was very definitely determined. In accordance with the principles of ancient custom, a court was a tribunal established by law with the power to hear controversies between persons and to administer relief or punishment. It was the business of a court to interpret, pronounce and execute the law, to decide controversies and enforce rights. In the words of Lord Coke, “ a court is a place where justice is judicially ministered.”

Such was the traditional position of a court when the Federal Constitution went into operation in 1789. A supreme court was provided for, to be organized by congress, in whose hands was placed the authority to create such inferior courts as might be necessary to carry out the judicial duties allotted to the federal government. The supreme court which was established by one of the first acts of the congress which met in 1789 very soon recognized and affirmed the limited and definite field for the exercise of judicial authority.

Type
Research Article
Information
American Political Science Review , Volume 2 , Issue 2 , February 1908 , pp. 221 - 244
Copyright
Copyright © American Political Science Association 1908

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References

1 Co. Litt. 58a.

2 Osborne v. Bank of the United States, 9 Wheaton, 738.

3 4 Wheaton, 519.

4 See note on Paxton's case: Thayer, , Cases on Constitutional Law, vol. i, p. 48Google Scholar, et al.

5 See Thayer, vol. i, p. 51.

6 Cited in 4 Halstead, 444.

7 Commonwealth v. Caton, 4 Call, 5.

8 See Thayer, vol. i, p. 73.

9 Bowman v. Middleton, 1 Bay, 252.

10 “The constitution is certain and fixed; it contains the permanent will of the people; and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked only by the authority that made it.” “The Constitution fixes limits to the exercise of legislative authority and prescribes the orbit within which it must move.” Vanhorne's Lessee v. Dorrance, 2 Dallas, 304.

11 See Thayer, vol. i, p. 73.

12 1 Cranch, 137.

13 “There can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them.” Locke, , Treatise on Government, chapter xii.Google Scholar

14 Il y a dans chaque État trois sortes de pouvoirs: la puissance législative, la puissance exécutrice des choses qui dépendent du droit des gens, et la puissance exécutrice de celles qui dépendent du droit civil. Montesquieu, Book XI, chapter vi.

15 2 Dallas, 409.

16 Calder v. Bull, 3 Dallas, 386.

17 Calder v. Bull, 3 Dallas, 386.

18 Note to Hayburn's Case, 2 Dallas, 409.

19 1 Cranch, 137.

20 1 Cranch, 137.

21 2 Peters, 253.

22 3 Dallas, 199.

23 Letter of Marshall (unpublished).

24 Fletcher v. Peck, 6 Cranch, 87.

25 Calder v. Bull, 3 Dallas, 386.

26 Ex parte Burford, 3 Cranch, 448.

27 Barron v. The Mayor and Council of Baltimore, 7 Peters, 243.

28 Hepburn and Dundas v. Ellzey, 2 Cranch, 445.

29 Hylton v. The United States, 3 Dallas, 171.

30 The Schooner Exchange v. McFaddon, 7 Cranch, 116.

31 6 Peters, 515.

32 McCulloch v. Maryland, 4 Wheaton, 316.

33 United States v. Berens, 3 Wheaton, 337.

34 Cohens v. Virginia, 6 Wheaton, 264.

35 Story on the Constitution, vol. i, pp. 142–3.

36 3 Dallas, 199.

37 United States v. Peters, 5 Cranch, 115.

38 1 Wheaton, 304.

39 Chisholm's Executor v. Georgia, 2 Dallas, 419.

40 Article XI, Amendments to the Constitution of the United States.

41 Cohens v. Virginia, 6 Wheaton, 264.

42 6 Cranch, 87.

43 4 Wheaton, 519.

44 9 Wheaton, 1.

45 Brown v. Maryland, 12 Wheaton, 409.

46 McCulloch v. Maryland, 4 Wheaton, 316.

47 Sturges v. Crowninshield, 4 Wheaton, 122.

48 McCulloch v. Maryland, 4 Wheaton, 316.

49 Gibbons v. Ogden, 9 Wheaton, 1.

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