shall have original and appellate jurisdiction. Authorizes the Congress to establish inferior courts. And vests the Judicial Power of the United States in the Supreme Court, and in the courts so established.

The two things that arrest ones attention in the perusal of this Article are Judicial Power and Jurisdiction, which are the very antithesis of each other. The former it confers directly upon the courts, which exercise it with absolute independence of the other departments of the Government. Taney, C. J., in note to U. S. v. Yale Todd, 13 How. 52.

The question to be answered, and which arises at the outset is,-What is this Judicial Power of the Courts which they derive directly from the Constitution? It is, indeed, very difficult to find any exact definition made to hand. Many are given in textbooks, and also in decisions of the Supreme Court. Perhaps some of the best definitions are given by Chief Justice Marshall in Osborn v. Bank of the United States, 9 Wheat. 738, 819, as follows:

"It is the power of the court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.

A case arises within the meaning of the Constitution when any question respecting the Constitution, treaties, or laws of the United States has assumed such a form that the judicial power is capable of acting on it."

Chief Justice Taney, in speaking of the Court and its judicial power, said:

"The Supreme Court does not owe its existence or its powers to the legislative department of the Government. It is created by the Constitution, and represents one of the great divisions of power in the Government of the United States, to each of which the Constitution has assigned its appropriate duties and powers, and made each independent of the other in performing its appropriate functions. The power con

ferred on this court is exclusively ju-
dicial, and it cannot be required or
authorized to exercise any other.
The existence of this court is therefore
as essential to the organization of the
Government established by the Consti-
tution as the election of a President or
members of Congress. It is the tribu-
nal which is ultimately to decide all
judicial questions confided to the Gov-
ernment of the United States. No ap-
peal is given from its decisions, nor any
power given to the legislative or execu-
tive departments to interfere with its
judgments or process of execution. Gor-
don v. United States, 117 U. S. (appen-
dix) 699, 700.

NO DANGER OF JUDICIAL USURPATION

Notwithstanding the unique position of the Court in our scheme of government, and the tremendous powers conferred upon it by the Constitution it is not a menace to our liberties and property rights, but their greatest bulwark and safeguard as proven by its history. While the court is supreme within its sphere, and its independence has been safeguarded in every way in the exercise of its duties there is no justification for the fear, sometimes expressed, of judicial usurpation on its part for

"While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the Government are distributed, it is inherently the weakest of them all. Dependent as its courts are for the enforcement of their judgments upon officers appointed by the Executive and removable at his pleasure, with no patronage and no control of the purse or the sword, their power and influence rest solely upon the public sense of the necessity of the existence of a tribunal to which all may appeal for the assertion and the protection of rights guaranteed by the Constitution, and by the laws of the land, and on the confidence. reposed in the soundness of their de

cision and the purity of their motives. United States v. Lee, 106 U. S. 196, 223.” JURISDICTION OF THE SUPREME COURT

The jurisdiction of the Supreme Court over the class of cases mentioned in Article 3, is divided into original and appellate. It gives to the Court original jurisdiction in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party. It exercises this jurisdiction exclusive of any and every power of the Congress in respect thereto. Congress can no more interfere with this jurisdiction of the court than it can with the judicial power of the Court. In all the other cases mentioned in the said Article the jurisdiction of the Court is appellate, and is subject to regulation by Congress. One of its earliest enactments upon the subject was, that no ordinary suit between individuals could come to the Supreme Court for revision unless the amount involved was over two thousand dollars. It is now five thousand. Congress in many other respects has exercised its power in regulation of appeals to the Supreme Court, but it is not deemed necessary to specify them, as its power in the premises is undisputed.

POWER OF COURT TO DECLARE LAWS UNCONSTITUTIONAL

This authority of the Court is one of the elements of its judicial power vested in it by the Constitution. While it is true that the Constitution does not confer upon the courts in express terms the power to declare unconstitutional laws of the Congress and of the State Legislatures its exercise by the courts is a necessary and inevitable incident of our form of Government, and of our written Constitution limiting and controlling the exercise of the powers of Government by public officials, and by the several Departments of the Government. The validity of the exercise of this power has been unanswerably vindicated by the Court in a great many cases, and its utility and importance have been the subject of ex

travagant praise and approval by both American and foreign critics of our institutions.

De Tocqueville says of it in his work, Democracy in America:

"The Americans have acknowledged. the right of Judges to found their decisions on the Constitution, rather than on the laws. In other words, they have left them at liberty not to apply such laws as appear to them to be unconstitutional.

I am aware that a similar right has been claimed, but claimed in vain, by courts of justice in other countries; but in America it is recognized by all the authorities.

"The power vested in the American courts of justice of pronouncing a statute to be unconstitutional, forms one of the most powerful barriers which has ever been devised against the tyranny of political assemblies." In the Federalist, No. 78, it is said of this subject:

"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.

"And it is the best expedient which can be devised in any government to secure the steady, upright, and impar tial administration of the laws." In Curtis' Constitution we find it stated:

"The judicial power of the United States considered with reference to its adaptation to the purposes of its creation, is one of the most admirable and felicitous structures that human governments have exhibited."

Viscount Bryce in his celebrated work on our institutions, The American Commonwealth, said:

"No feature in the government of the United States has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration, and been more fre

quently misunderstood than the duties assigned to the Supreme Court and the functions which it discharges in guarding the Ark of the Constitution."

In the case of Marbury v. Madison, 1 Cranch, 175, Chief Justice Marshall vindicated the rightfulness of the exercise of this power, its justification and necessity beyond dispute in the following lan

guage:

"If two laws conflict with each other the courts decide upon the operation of each. So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution and not such ordinary act must govern the case to which they both apply.

"Those then who controvert the principle that the Constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, nothwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring those limits may be passed at pleasure."

In Vanhorn's Lessees v. Dorrance, 2 Dall. 304, the Court said on this subject:

"But in the United States, if a legislative act impugns a constitutional principle, the former must give way, and be rejected on the score of repugnance. In such case it will be the duty of the court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both legislators and judges are to proceed.

Quotations from the decisions of the courts and from commentators on our institutions in support of this power are many, but the foregoing are deemed sufficient. Its exercise by the courts has been recognized and acquiesced in by the country at large, and is now disputed by

no one.

Its existence and necessity being established and undisputed it follows that it must be exercised by a majority of the court unless and until some other number shall be prescribed in and by the same source and authority from which the power is derived, namely, the Constitution.

If the power of the court to declare an act of the Congress unconstitutional is one of the attributes of its Judicial Power, which, like the powers of the Congress, it derives from the Constitution, then Congress can no more dictate the number of judges that shall concur in such a decision than it can dictate to the court how it shall decide the case itself. If the foregoing observations are well founded, and we believe them indisputable, a conclusive answer to the unconstitutionality of this bill of Senator Borah is that if we admit the constitutional power of Congress to require a greater number than a majority of the court to declare laws unconstitutional, then we logically concede that this power is without limit, and that the Congress can go a step further, which, in its present temper, it would likely do, and take from the court.

this power altogether; thereby making an act of the Congress superior to the organic law of the nation, and destroying one of the most valuable and important powers exercised by the courts for the protection of the liberties and the property rights of the citizen.

If the people conclude that a number greater than a majority of the Judges should concur to invalidate laws because of their repugnance to the Constitution there is but one proper way by which their will may be accomplished, and that is by an amendment to the Constitution, wherein the number shall be definitely fixed, and not left to the whim of Congress.

Just so sure as Congress should be so ill advised as to enact this bill proposed by Senator Borah, just so sure will the court be constrained by its oath of office to declare it null and void as an infringement upon the Constitutional power and independence of the judiciary. Congress should not subject the court to this embarrassing and unpleasant duty, for it would be taken advantage of by every crack-brained political demagogue, and radical in the country to rail against the courts, and denounce their act as one of judicial usurpation to the detriment of the courts in the estimation of a large class of our people, who are untutored and unthinking.

Our courts have proven themselves worthy of the great powers and responsibilities imposed upon them by the Constitution. They are entitled to the respect and the support of the people, for the people created them, and it is to them. we must look for the vindication of our rights, for the protection of our liberties, and the safety of our property.

The integrity, the learning, and the independence of our judiciary must be maintained at all hazards, if we are to escape revolution, and our institutions are to endure. The great John Marshall never uttered a finer or a truer thing than when defending the judiciary in the Virginia Convention of 1829 he said:

"I have always thought, from my earliest youth till now, that the greatest Scourge an angry heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt, or a dependent judiciary.'

As indicative of the necessity and value of an independent judiciary in our system of government, and because of its impressiveness and authority, I cannot refrain from closing this article with the following quotation from Viscount Bryce's thoughtful, and in every way splendid work on Modern Democracies, Vol. 2, pp. 384-5; a work that should be read by every one who is interested in He popular and efficient government.

says:

"There is no better test of the excellence of a government than the efficiency of its judicial system, for nothing more nearly touches the welfare and security of the average citizen than his sense that he can rely on the certain and prompt administration of justice. Law holds the community together. Law is respected and supported when it is trusted as the shield of innocence and the impartial guardian of every private civil right. Law sets for all a moral standard which helps to maintain a like standard in the breast of each individual. But if the law be dishonestly administered, the salt has lost its savour; if it be weakly or fitfully enforced, the guarantees of order fail, for it is more by the certainty than by the severity of punishment that offenses are repressed. If the lamp of justice goes out in darkness, how great is that darkness!

"In all countries cases, sometimes civil, but more frequently criminal, arise which involve political issues and excite party feeling. It is then that the courage and uprightness of the judges become supremely valuable to the nation, commanding respect for the exposition of the law which they have to deliver. But in those countries that live under a Rigid Constitution which,

and take their place side by side with the Executive and the Legislative as a co-ordinate department of government. When questions arise as to the limits of the powers of the Executive or of the Legislative, or-in a Federation—as to the limits of the respective powers of the Central or National and those of the State Government, it is by a court of law that the true meaning of the Constitution, as the fundamental and supreme law, ought to be determined, because it is the rightful and authorized interpreter of what the people intended to declare when they were enacting a fundamental instrument. This function of Interpretation calls for high legal ability, because such decision given becomes a precedent determining for the future the respective powers of the several branches of government, their relations to one another and to the individual citizen."

that to enable him to reach said yards said company furnished a shuttle train, which transported its employees without charge to their work; that one of the points where said train received said employees was Thirty-seventh street, in the city of Savannah, at which street it was the custom of this train to slow up for such employees to board it; that the train had slowed up for this purpose, when, just as the plaintiff had touched the grabiron on the platform, the brakes, which had been applied, were released, which caused the speed of the train to increase suddenly, and caused the handhold on the rear end of the car, which plaintiff had seized, to be snatched forward, so that his grip on the same was relaxed; that the handhold or grabiron was in a defective condition, not firm and secure; that it got away from him, moving about six inches, which caused him to lose his hold, so that he was thrown under the car and caused to be injured. Plaintiff also alleged that the grabiron in question was a safety appliance, required by the Safety Appliance Act of Congress.

The evidence showed that plaintiff was a fireman on a switch engine, engaged in making up and breaking up interstate railway freight trains coming from Charleston, S. C., and Jacksonville, Fla., into Georgia. The evidence also indicated that, when injured, he was in the act of stepping upon this train, which was moving at the rate of two or three miles per hour; that the rear platform rail was in a loose condition, so that it swung forward or backward from six to ten inches; that as he was in the act of getting on said train the brakes were released and the speed increased; that he missed one grabiron and his knee struck the step, but he caught the platform rail, which was loose, and fell under the car. The evidence showed that this shuttle train carried no paid passengers; that it was an appliance furnished by the railroad company to its employees to enable them to reach its yards to there discharge their duties. The Court instructed the jury that under the evidence Williams was an employee engaged in interstate commerce at the time of his injury, and this instruction is one of the errors complained of.

(1) 1. At the time Williams was hurt, he was engaged in going to his work with the railroad company, which was clearly an em