of Congress and the Court.
Congress is thus placed under constitutional obligation to establish one Supreme Court, but the size of that Court is for Congress itself to determine, as well as whether there shall be any inferior Federal Courts at all. What, it may be asked, is the significance of the word "shall" in Section II? Is it merely permissive or is it mandatory? And, in either event, when does a case arise under the Constitution or the laws of the United States? Here, too, are questions which are left for Congress in the first instance and for the Supreme Court in the last. Further, the Supreme Court is given "original jurisdiction" in certain specified cases and "appellate jurisdiction" in all others--subject, however, to "such exceptions and under such regulations as the Congress shall make." Finally, the whole question of the relation of the national courts to the state judiciaries, though it is elaborately discussed by Alexander Hamilton in the "Federalist," is left by the Constitution itself to the practically undirected wisdom of Congress, in the exercise of its power to pass "all laws which shall be necessary and proper for carrying into execution"* its own powers and those of the other departments of the Government.
* Article I, section VIII, 18.
Almost the first official act of the Senate of the United States, after it had perfected its own organization, was the appointment of a committee "to bring in a bill for organizing the judiciary of the United States." This committee consisted of eight members, five of whom, including Oliver Ellsworth, its chairman, had been members of the Federal Convention. To Ellsworth is to be credited largely the authorship of the great Judiciary Act of September 24, 1789, the essential features of which still remain after 130 years in full force and effect.
This famous measure created a chief justiceship and five associate justiceships for the Supreme Court; fifteen District Courts, one for each State of the Union and for each of the two Territories, Kentucky and Ohio; and, to stand between these, three Circuit Courts consisting of two Supreme Court justices and the local district judge. The "cases" and "controversies" comprehended by the Act fall into three groups: first, those brought to enforce the national laws and treaties, original jurisdiction of which was assigned to the District Courts; secondly, controversies between citizens of different States*; lastly, cases brought originally under a state law and in a State Court but finally coming to involve some claim of right based on the National Constitution, laws, or treaties. For these the twenty-fifth section of the Act provided that, where the decision of the highest State Court competent under the state law to pass upon the case was adverse to the claim thus set up, an appeal on the issue should lie to the Supreme Court. This twenty-fifth section received the hearty approval of the champions of State Rights, though later on it came to be to them an object of fiercest resentment. In the Senate, as in the Convention, the artillery of these gentlemen was trained upon the proposed inferior Federal Judiciary, which they pictured as a sort of Gargantua ready at any moment "to swallow up the state courts."
* Where the national jurisdiction was extended to these in the interest of providing an impartial tribunal, it was given to the Circuit Court.
The first nominations for the Supreme Court were sent in by Washington two days after he had signed the Judiciary Act. As finally constituted, the original bench consisted of John Jay of New York as Chief Justice, and of John Rutledge of South Carolina, William Cushing of Massachusetts, John Blair of Virginia, James Wilson of Pennsylvania, and James Iredell of North Carolina as Associate Justices. All were known to be champions of the Constitution, three had been members of the Federal Convention, four had held high judicial offices in their home States, and all but Jay were on record as advocates of the principle of judicial review. Jay was one of the authors of the "Federalist", had achieved a great diplomatic reputation in the negotiations of 1782, and possessed the political backing of the powerful Livingston family of New York.
The Judiciary Act provided for two terms of court annually, one commencing the first Monday of February, and the other on the first Monday of August. On February 2, 1790, the Court opened its doors for the first time in an upper room of the Exchange in New York City. Up to the February term of 1798 it had heard but five cases, and until the accession of Marshall it had decided but fifty-five. The justices were largely occupied in what one of them described as their "post-boy duties," that is, in riding their circuits. At first the justices rode in pairs and
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