power to construe The subject matter of which this court has LECTURE VIII. jurisdiction is the construction and exposition of No danger to be apprehended from the Constitution of the United States, which the exercise of the controls the affairs of sixty millions of people. the Constitution. Its every-day business, almost, is to pass upon the question of conflicting rights and jurisdictions between the States and the United States, and between the laws framed by each of this class of political bodies. Its judges hold their offices for life, unless removed by impeachment. But one attempt has been made in the history of the Government to impeach a member of that court, and that effort failed. It has been said that these powers may be dangerous to the people, and to the other departments of the Government, but the answer to this is both true and perfect. The judicial branch of the Government, of which the Supreme Court is the head, is the weakest of all the three great departments into which the power of the nation is divided. It has no army, it has no navy, and it has no purse. It has no patronage, it has no officers, except its clerks and marshals, and the latter are appointed by the President and confirmed by the Senate. They are the officers to whom its processes are sent for the enforcement of its judgments, but they may be removed at any time by the Executive. The clerks, whom the judges in some form or other are permitted to appoint, have salaries or compensation regulated by the legislature. The clerk who may receive $20,000 or more, in fees, must pay all but $3500 of such receipts into the LECTURE VIII. Treasury of the United States. The judges No danger in the themselves are dependent upon appropriations exercise by the to construe the Court of its power made by the legislature for the payment of the salaries which support them while engaged in the functions of their office. Constitution. be It is, then, so far as the ordinary forms of power are concerned, by far the feeblest branch or department of the Government. It must rely upon the confidence and respect of the public for its just weight and influence, and it may confidently asserted that neither with the people, nor the country at large, nor the other branches of the Government, have there ever been found wanting that respect and confidence. It is one of the best tributes which can be paid to the American nation, a tribute which it deserves above all others, even of Anglo-Saxon descent, and which can be paid to no other race, that it always submits to the law as expounded by its judiciary. In all the excitements of bitter contests, involving great financial interests, power, position, and even political existence, in fact everything which could properly be brought within its judicial cognizance, the people have always felt that their interests were safely intrusted to its charge. That the court may long continue to deserve this confidence, as it has for the past hundred years, must be the desire of every patriotic citizen. NOTES UPON LECTURE VIII. MR. JUSTICE MILLER'S treatment of the sub- LECTURE VIII. ject of this lecture is so thorough, and his reference to cases so recent, as to leave little to be said. The subjects will be considered in the order in which they are treated in the lecture. 1. Detail of a Justice to other duties. In addition to the cases of Chief Justice Jay Detail of a justice and Chief Justice Marshall, referred to by Mr. to other duties. Justice Miller, there have been two notable instances, in more recent days, of the detail, if I may call it so for want of a better word, of justices of the Supreme Court to the performance of duties outside of the judicial power imposed upon them by the Constitution. In January, 1871, the British Cabinet made confidential approaches to the Government of the United States with a view to ascertain whether some practicable way could not be found for disposing of the pending questions between the two governments, including the Alabama Claims, the Fisheries, and the Oregon boundary. This resulted in an agreement to organize a joint commission, which should be charged with dealing with these subjects; and LECTURE VIII. on the 9th of February, just one month after Detail of a justice the negotiations opened, President Grant nomi to other duties. 66 nated to the Senate five commissioners on the part of the United States, of whom one was "Samuel Nelson, an associate justice of the Supreme Court of the United States." The message with the nominations was accompanied by a brief on " Plurality of Offices" for the use of the Senate. The first among several cases given was that of Mr. Jay; and it was said that he was nominated to the Senate "as Envoy Extraordinary of the United States on the 16th of April, 1794; was confirmed on the 19th of that month; went to London, and there signed the treaty known as Jay's Treaty on the 29th of November, 1794; arrived in New York on the 28th of May, 1795; and resigned the office of chief justice on the 29th of the following June." I trust it will not be thought improper for me to add a fact within my own knowledge, that Mr. Justice Nelson proved to be a most valuable member on that commission. His counsels were always judicious, and his views were generally adopted by his colleagues. His labors there lasted until after the end of that term of court, and with them closed the work of a long and honorable career of public service. He was retired at his own request in the following autumn, and died in December, 1873. The second instance of such detail was brought about by the Act of January 29, 1877,' under 1 19 Stat. 227, c. 37. to other duties. which the Electoral Commission was established LECTURE VIII. to decide "all questions upon or in respect of Detail of a justice double returns" in the Presidential election of that year. This body consisted of five members of the Senate, five members of the House, and five associate justices of the Supreme Court, of whom Mr. Justice Miller was one. It is unnecessary to make further references to so recent an historic fact. 2. Suits against a State. State. The provision in the Constitution conferring Suits against a upon the Federal courts judicial power in "controversies between two or more States" was adopted from the Articles of Confederation, which provided, in Article IX, that, "The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences, now subsisting or that may hereafter arise, between two or more States concerning boundary, jurisdiction, or any other cause whatever." Elaborate provisions were made for regulating the exercise of this jurisdiction which need not be described. This power was invoked six times during the existence of the Confederation; but in only one case were the proceedings carried to final judgment. All were questions of territorial jurisdiction. The first in date related to the sovereignty over the territory now known as Vermont, then claimed by New York on the one hand, and New Hampshire on the other. The settlers and occupiers of the soil drove out the New York |