of the former, and depends essentially for the character, extent and exercise of its powers, upon proper understanding of the powers reserved to the States." JOHN MCKINLEY of Alabama, in the Senate, March 26, 1828. 20th Cong., 1st Sess.

An American citizen will never understand the form of government under which he is living, unless he understands why we must have a Supreme Court. And he will never understand why we must have a Supreme Court, until he understands the form of government under which he is living. He must thoroughly grasp the fact that the existence of the American form of government - a federal republic with limited national powers - implies and requires for its preservation the existence of a Supreme Court. The retention of such a republic is inseparably bound up with the retention of a Court having authority to enforce the limitation of national powers. "No conviction is deeper, in my mind," said Daniel Web>ster, "than that the maintenance of the Judicial power is essential and indispensable to the very being of this Government. The Constitution, without it, would be no Constitution - the Government, no Government. . . . By the absolute necessities of the case, the members of the Supreme Court become judges of the extent of constitutional powers.'

1 Daniel Webster, in the House, Jan. 25, 1826 (19th Cong., 1st Sess.), continued: "The Judicial power is the protecting power of the whole Government. Its position is upon the outer wall. From the very nature of things and the frame of the Constitution, it forms the point at which our different systems of Government meet in collision, when collision unhappily exists."

Webster said in the Senate, Jan. 26, 27, 1830 (21st Cong., 1st Sess.): "The people, then, sir, erected this government. They gave it a Constitution, and in that Constitution they have enumerated the powers which they bestow on it. They have made it a limited government. They have defined its authority. They have restrained it to the exercise of such powers as are granted; and all others, they declare, are reserved to the States or the people. But, sir, they have not stopped here. If they had, they would have accomplished

Suppress its functions and the Constitution ceases to be a supreme law capable of enforcement, and becomes whatever the Congress, from time to time, decides it shall be.

It is, of course, possible to have a republic without a Supreme Court; but it will be a republic with a consolidated and autocratic government, a government in which the States and the citizens will possess no right or power save such as Congress, in its absolute discretion, sees fit to leave to them. Americans can, of course, adopt such a form of government if they choose but they should adopt it consciously and by express action; they should not change their present form unwittingly or by indirection; they should not destroy its fundamental features, without realizing that it is the foundation which they are destroying. It is because American citizens have not realized that attacks upon the Supreme Court are attacks upon the very form of government of the United States, that these attacks have hitherto been regarded with so little attention by the average man. It is because so many American citizens seem to have the belief that Congress has the power to do anything which it is not expressly forbidden to do by the Constitution, that they are inclined to be resentful whenever the Court fails to

but half their work. No definition can be so clear as to avoid possibility of doubt; no limitation so precise as to exclude all uncertainty. Who, then, shall construe this grant of the people? Who shall interpret their will, where it may be supposed they have left it doubtful? With whom do they repose this ultimate right of deciding on the powers of the government? ... To whom lies the last appeal? This, sir, the Constitution itself decides also, by declaring: "That the judicial power shall extend to all cases arising under the Constitution and laws of the United States.' These two provisions, sir, cover the whole ground. They are, in truth, the keystone of the arch. With these, it is a Constitution; without them, it is a Confederacy."

uphold Congress in the exercise of some particular power which these citizens may think desirable. They entirely overlook the fact that, under the Constitution, Congress only possesses those limited powers granted to it by that instrument, all other powers being reserved to the States; and that if it is desirable that Congress should possess any other powers, they must be vested, and can be vested, in that body, only by action of the peoples of three fourths of the States in adopting a Constitutional Amendment.1

One hundred and fifty years ago (in June, 1776) George Mason of Virginia, in writing the first Bill of Rights in this country, placed at its head this sentiment that "no free government or the blessing of liberty can be preserved to any people but by frequent recurrence to fundamental principles." Benjamin Franklin followed this, three months later (in September, 1776), in his Bill of Rights for Pennsylvania that "a frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty and keep a government free." And four years later, John Adams, in

1"This Government is to be administered according to written law, applied to defined objects and situations. It was a Government of definition and not of trust and discretion." William Vans Murray of Maryland, in the House, April 12, 1792. 2d Cong., 1st Sess.

"This is a Government constituted for particular purposes only; and the powers granted to carry it into effect are specifically enumerated and disposed among the various branches. If those powers are insufficient, or if they are improperly distributed, it is not our fault, or within our power to remedy. The People, who bestowed them, must grant further powers, organize those already granted, in a more perfect manner, or suffer from the defect. We can neither enlarge nor modify this. This was the ground on which the friends of government supported the Constitution. It was a safe ground; and I venture to say it could not have been supported on any other." Alexander White of Virginia, in the House, June 18, 1789. 1st Cong., 1st Sess.

the Massachusetts Bill of Rights in 1780, amplified it — that "a frequent recurrence to the principles of the Constitution . . . is absolutely necessary to preserve the advantages of liberty and to maintain a free government. The people . . . have a right to require of their law-givers and magistrates an exact and constant observance of them." Fifteen years later, the same thought was expressed by a great Englishman, Edmund Burke, who wrote: "The spirit of change that is gone abroad; the total contempt which prevails with you and may come to prevail with us, of all ancient institutions, when set in opposition to a present sense of inconvenience or to the bent of a present inclination; all these considerations make it not unadvisable, in my opinion, to call back our attention to the true principles of our own domestick laws.

For a "recurrence to fundamental principles", for a knowledge of the "true principles of our domestick laws", we must resort to history. And to appreciate why the Supreme Court has the power which it exercises, we must know something not only of the history of that part of the Federal Constitution which deals with the Supreme Court in its relation to Acts of Congress, but also of the history of the State Constitutions from which sources the Federal Constitution was in a large part drawn.

During the four hot summer months of 1787, in Philadelphia, fifty-five men- delegates from twelve States took part in framing a new form of government. The proceedings of that Federal Convention should particularly appeal to the young men and women of this country; for it was a meeting of com

paratively young men. Six of the fifty-five were under thirty-two years of age; forty-one were under fifty years of age; and only three were over sixty. George Washington, the President of the Convention, was only fifty-five; Edmund Randolph, who introduced the Virginia Plan (which was a basis for the final Constitution), was thirty-four, and James Madison, who drafted it, was thirty-six; Charles Pinckney of South Carolina, from whose plan much of the Constitution was taken, was only twentynine; Gouverneur Morris, who took a leading part in preparing the wording of the final draft, was thirty-five; Alexander Hamilton, to whose efforts in The Federalist the ratification of the Constitution was largely due, was only thirty. On the other hand, men to-day, who may be called upon to take part in the administration and improvement of their government, will do well to note that it was largely due to the tactful wisdom and long experience of an old man of eighty-one that the members of the Convention ever finally agreed on any Constitution. And the words of Benjamin Franklin, in the closing hour of the Convention, may well be imprinted on the minds of all legislators, as the foundation for every successful achievement in government.

1 Credit for phrasing the final draft has been given to Gouverneur Morris by historians, partly on the basis of his own assertions; see The Framing of the Constitution of the United States (1913), by Max Farrand. An unpublished letter from Timothy Pickering to John Marshall, in the Pickering Papers MSS in the Massachusetts Historical Society Library, is believed by the present writer to make it doubtful whether credit is wholly due to Morris. Writing, March 10, 1828, Pickering said: "James Wilson once told me that after the Constitution had been finally settled, it was committed to him to be critically examined respecting its style, in order that the instrument might appear with the most perfect precision and accuracy of language.' And to John Lowell, Pickering wrote, January 9, 1828, that Wilson told him that "its final revision in regard to correctness of style was committed to him."