Chapter LVIII: Section 3: Treason against the United States, shall consist (1)

only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Treason

The provisions and phraseology of this section are derived from the English Statute of Treasons enacted in 1351, in the reign of Edward III,[724] as an expression of grievance against the application of the doctrine of constructive treasons by the common law courts. The constitutional definition is, of course, much more restrictive than the enumeration of treasons in the English statute, but like that statute, it is emphatically a limitation on the power of government to define treason and to prove its existence. The rigid and exclusive definition of treason takes from Congress all power to define treason and prescribes limitations on the power to prescribe punishment thereupon.

LEVYING WAR

Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of Aaron Burr and his associates. In Ex parte Bollman,[725] which involved two of Burr's confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying of war to the actual waging of war. "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war, are distinct offences. The first must be brought into open action, by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that * * * it has been determined that the actual enlistment of men, to serve against the government, does not amount to the levying of war."[726] Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. "On the contrary, if it be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."[727] On the basis of these considerations and due to the fact that no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. He continued by saying that "the crime of treason should not be extended by construction to doubtful cases" and concluded that no conspiracy for overturning the Government and "no enlisting of men to effect it, would be an actual levying of war."[728]

The Burr Trial

Not long afterward the Chief Justice went to Richmond to preside over the trial of Burr himself. His ruling[729] denying a motion to introduce certain collateral evidence bearing on Burr's activities is significant both for rendering the latter's acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief this ruling held that Burr, who had not been present at the assemblage on Blennerhassett's Island, could be convicted of advising or procuring a levying of war, only upon the testimony of two witnesses to his having procured the assemblage. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall's pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities.[730]

AID AND COMFORT TO THE ENEMY; THE CRAMER CASE

Since the Bollman case only three treason cases have ever reached the Supreme Court, all of them outgrowths of World War II and all charging adherence to enemies of the United States and giving them aid and comfort. In the first of these, Cramer _v._ United States,[731] the issue was whether the "overt act" had to be "openly manifest treason" or if it was enough if, when supported by other proper evidence, it showed the required treasonable intention.[732] The Court in a five-to-four opinion by Justice Jackson in effect took the former view holding that "the two-witness principle" interdicted "imputation of _incriminating acts_ to the accused by circumstantial evidence or by the testimony of a single witness,"[733] even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,"[734] Justice Jackson asserted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer's treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand.

THE HAUPT CASE

The Supreme Court sustained a conviction of treason, for the first time in its history in 1947 in Haupt _v._ United States.[735] Here it was held that although the overt acts relied upon to support the charge of treason--defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant--were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. If proof be added that the defendant knew of his son's instructions, preparation and plans, the purpose to aid and comfort the enemy becomes clear."[736]

The Court held that conversations and occurrences long prior to the indictment were admissible evidence on the question of defendant's intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length;

"As the _Cramer_ case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.

"The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of _Cramer_.

"The _Cramer_ case departed from those rules when it held that 'The two-witness principle is to interdict imputation of _incriminating acts_ to the accused by circumstantial evidence or by the testimony of a single witness.' 325 U.S. p. 35. The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into an incriminating one."[737]

THE KAWAKITA CASE

The third case referred to above is Kawakita _v._ United States,[738] which was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: "At petitioner's trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese; showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport." The question whether, on this record Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.[739]

DOUBTFUL STATE OF THE LAW OF TREASON TODAY

The vacillation of Chief Justice Marshall between the Bollman[740] and Burr[741] cases and the vacillation of the Court in the Cramer[742] and Haupt[743] cases leaves the law of treason in a somewhat doubtful condition. The difficulties created by the Burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label within a formula provided by Chief Justice Marshall himself in the Bollman case. The passage reads: "Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution * * * must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation."[744]

Clause 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

CORRUPTION OF BLOOD AND FORFEITURE

The Confiscation Act of 1862[745] "to Suppress Insurrection; to Punish Treason and Rebellion; to Seize and Confiscate the Property of Rebels raised issues under article III, section 3, clause 2." Because of the constitutional doubts of the President the act was accompanied by an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and that at his death his children could take the fee simple by descent as his heirs without deriving any title from the United States. In applying this act, passed in pursuance of the war power and not the power to punish treason,[746] the Court in one case[747] quoted with approval the English distinction between a disability absolute and perpetual and one personal or temporary. Corruption of blood as a result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the attainted person "to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him."[748]

Notes

[1] Miller, On the Constitution, 314 (New York, 1891).

[2] 219 U.S. 346 (1911)

[3] Ibid. 361.

[4] United States _v._ Arredondo, 6 Pet. 691 (1832).

[5] General Investment Co. _v._ New York Central R. Co., 271 U.S. 228, 230 (1926).

[6] For distinctions between judicial power and jurisdiction _see_ Williams _v._ United States, 289 U.S. 553, 566 (1933); and the dissent of Justice Rutledge in Yakus _v._ United States, 321 U.S. 414, 467-468 (1944).

[7] Michaelson _v._ United States, 266 U.S. 42 (1924).

[8] McIntire _v._ Wood, 7 Cr. 504 (1813); Ex parte Bollman, 4 Cr. 75 (1807).

[9] Wayman _v._ Southard, 10 Wheat. 1 (1825)

[10] Gumbel _v._ Pitkin, 124 U.S. 131 (1888).

[11] Ex parte Peterson, 253 U.S. 300 (1920).

[12] Ex parte Garland, 4 Wall. 333, 378 (1867).

[13] Chisholm _v._ Georgia, 2 Dall. 419 (1793); Kentucky _v._ Dennison, 24 How. 66, 98 (1861) contains a review of authorities on this point.

[14] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Cary _v._ Curtis, 3 How. 236 (1845); Shelden _v._ Sill, 8 How. 441 (1850); Kline _v._ Burke Construction Co., 260 U.S. 226 (1922). _See also_ the cases discussed under the heading of the Power of Congress to regulate the jurisdiction of the lower federal courts, _infra_, p. 616.

[15] 2 Dall. 409 (1792).

[16] His initial effort was in United States _v._ Ferreira, 13 How. 40 (1852). This case involved the validity of an act of Congress directing the judge of the territorial court of Florida to examine and adjudge claims of Spanish subjects against the United States and to report his decisions with evidence thereon to the Secretary of the Treasury who in turn was to pay the award to the claimant if satisfied that the decisions were just and within the terms of the treaty of cession. After Florida became a State and the territorial court a district court of the United States, the Supreme Court refused to entertain an appeal under the statute for want of jurisdiction to review nonjudicial proceedings. The duties required by the act, it was said "are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws." Ibid. 51.

[17] 2 Wall. 561 (1865).

[18] 117 U.S. 697 Appx. (1864). _See also_ De Groot _v._ United States, 5 Wall. 419 (1867) and United States _v._ Klein, 13 Wall. 128 (1872), which sustained Supreme Court revision after the jurisdiction of the Court of Claims had been made final. The Gordon decision had indicated that the Supreme Court could not review the decision of any legislative court.

[19] 117 U.S. 697, 703. This last doctrine was repeated to the extent that for many years an award of execution as distinguished from finality of judgment came to be regarded as an essential attribute of judicial power. _See_ In re Sanborn, 148 U.S. 222, 226 (1893); Interstate Commerce Commission _v._ Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 457 (1899); Frasch _v._ Moore, 211 U.S. 1 (1908); Muskrat _v._ United States, 219 U.S. 346, 355, 361-362 (1911), and Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927).

[20] 273 U.S. 70 (1927).

[21] 276 U.S. 71 (1928).

[22] 274 U.S. 123 (1927). This case also clarified any doubts concerning a federal declaratory judgment act which was passed in 1934 and sustained in Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937).

[23] 288 U.S. 249 (1933). The decision in the Swope and Wallace cases removed all constitutional doubts which had previously shrouded a proposed federal declaratory judgment act which was enacted in 1934 (48 Stat. 955) and sustained in Aetna Life Ins. Co. _v._ Haworth, 300 U.S. 227 (1937).

[24] John Charles Fox, The King _v._ Almon, 24 Law Quarterly Review 184, 194-195 (1908).

[25] John Charles Fox, The Summary Power to Punish Contempt, 25 Law Quarterly Review, 238, 252 (1909).

[26] 1 Stat. 73, 83.

[27] Act of March 2, 1831, 4 Stat. 487, now 18 U.S.C.A. 401. For a summary of the Peck Impeachment and the background of the act of 1831, _see_ Felix Frankfurter and James Landis, Power of Congress Over Procedure in Criminal Contempts in Inferior Federal Courts--A Study in Separation of Powers, 37 Harvard Law Review, 1010, 1024-1028 (1924).

[28] 19 Wall. 505 (1874).

[29] Ibid. 505, 510-511.

[30] Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). _See also_ In re Debs, 158 U.S. 504, 595 (1895).

[31] U.S. 42 (1924).

[32] 38 Stat. 730 (1914).

[33] 266 U.S. 42, 65-66.

[34] 247 U.S. 402 (1918).

[35] Ibid. 418-421.

[36] 263 U.S. 255 (1923). In his dissent in this case, Justice Holmes stated that unless a judge has power to "lay hold of anyone who ventures to publish anything that tends to make him unpopular or to belittle him * * *. A man cannot be summarily laid by the heels because his words may make public feeling more unfavorable in case the judge should be asked to act at some later date, any more than he can for exciting feeling against a judge for what he already has done." Ibid. 281-282.

[37] 313 U.S. 33, 47-53 (1941).

[38] 314 U.S. 252, 260 (1941). _See_ pp. 783-784 (Amendment I).

[39] 128 U.S. 289 (1888).

[40] 267 U.S. 517 (1925).

[41] Ibid. 534, 535.

[42] Ibid. 539.

[43] Sacher _v._ United States, 343 U.S. 1 (1952).

[44] Dennis _v._ United States, 341 U.S. 494 (1951).

[45] 343 U.S. 1, 11, 13-14. Justice Clark did not participate. Justices Black, Frankfurter, and Douglas dissented. Justice Frankfurter's opinion is accompanied by an elaborate review of exchanges between the trial judge and defense counsel, excerpted from the record of the case. On the constitutional issue he said: "Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits. In this case the course of events to the very end of the trial shows that summary measures were not necessary to enable the trial to go on. Departure from established judicial practice, which makes it unfitting for a judge who is personally involved to sit in his own case, was therefore unwarranted. Neither self-respect nor the good name of the law required it. Quite otherwise. Despite the many incidents of contempt that were charged, the trial went to completion, nine months after the first incident, without a single occasion making it necessary to lay any one of the lawyers by the heel in order to assure that the trial proceed. The trial judge was able to keep order and to continue the court's business by occasional brief recesses calculated to cool passions and restore decorum, by periodic warnings to defense lawyers, and by shutting off obstructive arguments whenever rulings were concisely stated and firmly held to." Ibid. 36. Justice Douglas summarized the position of all three dissenters, as follows: "I agree with Mr. Justice Frankfurter that one who reads this record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers. I therefore agree with Mr. Justice Black and Mr. Justice Frankfurter that this is the classic case where the trial for contempt should be held before another judge. I also agree with Mr. Justice Black that petitioners were entitled by the Constitution to a trial by jury." Ibid. 80.

[46] 330 U.S. 258, 293-307 (1947).

[47] 203 U.S. 563 (1906)

[48] Gompers _v._ Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). _See also_ Bessette _v._ W.B. Conkey Co., 194 U.S. 324, 327-328 (1904).

[49] 267 U.S. 87, 119-120 (1925).

[50] Michaelson _v._ United States, 266 U.S. 42, 65-66 (1924).

[51] 154 U.S. 447 (1894).

[52] Penfield Co. _v._ Securities and Exchange Commission, 330 U.S. 585 (1947). Note the dissent of Justice Frankfurter. For delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them _see also_ McCrone _v._ United States, 307 U.S. 61 (1939); Endicott Johnson Corp. _v._ Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. _v._ Walling, 327 U.S. 186 (1946). In the last mentioned case Justice Murphy dissented on the ground that delegation of the subpoena power to nonjudicial officers is unconstitutional as "a corrosion of liberty." In the Endicott Johnson Case he expressed dissatisfaction with the exercise of this power by administrative agencies but confined his dissent to emphasizing greater judicial scrutiny in enforcing administrative orders to appear and produce testimony.

[53] 1 Stat. 73, 81.

[54] Ibid. 81-82.

[55] 1 Cr. 137 (1803). _Cf._ Wiscart _v._ Dauchy, 3 Dall. 321 (1796).

[56] McIntire _v._ Wood, 7 Cr. 504 (1813); and McClung _v._ Silliman, 6 Wheat. 598 (1821).

[57] 12 Pet. 524 (1838).

[58] Ex parte Bollman, 4 Cr. 74, 93, 94 (1807).

[59] Ex parte Yerger, 8 Wall. 85 (1869).

[60] _See also_ Ex parte McCardle, 7 Wall. 506 (1869).

[61] In United States _v._ Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), Justice Brewer, speaking for the Court, approached a theory of inherent equity jurisdiction when he declared: "The principles of equity exist independently of and anterior to all Congressional legislation, and the statutes are either annunciations of those principles or limitations upon their application in particular cases." It should be emphasized, however, that the Court made no suggestion that it could apply pre-existing principles of equity without jurisdiction over the subject matter. Indeed, the inference is to the contrary. In a dissenting opinion in which Justices McKenna and Van Devanter joined, in Paine Lumber Co. _v._ Neal, 244 U.S. 459, 475 (1917), Justice Pitney contended that article III, section 2, "had the effect of adopting equitable remedies in all cases arising under the Constitution and laws of the United States where such remedies are appropriate."

[62] Boyce's Executors _v._ Grundy, 3 Pet. 210 (1830).

[63] 1 Stat. 333; 28 U.S.C.A. 1651.

[64] 14 Stat. 475 (1867); 26 U.S.C.A. 3653 (a).

[65] 36 Stat. 557 (1910); 28 U.S.C.A. 2281.

[66] 50 Stat. 752 (1937); 28 U.S.C.A. 2282.

[67] 38 Stat. 220 (1913); 28 U.S.C.A. 2325.

[68] 48 Stat. 775 (1934); 28 U.S.C.A. 1342.

[69] 38 Stat. 730 (1914) (Clayton Act); 29 U.S.C.A. 52, and 47 Stat. 70 (1932) (Norris-LaGuardia Act); 29 U.S.C.A. 101-115.

[70] 56 Stat. 31 (1942), Sec. 204; 50 U.S.C.A. 924 (App.).

[71] Freeman _v._ Howe, 24 How. 450 (1861); Gaines _v._ Fuentes, 92 U.S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908).

[72] Langnes _v._ Green, 282 U.S. 531 (1931); Riehle _v._ Margolies, 270 U.S. 218 (1929), and Essanay Film Mfg. Co. _v._ Kane, 258 U.S. 358 (1922). _See also_ Hill _v._ Martin, 296 U.S. 393, 403 (1935); Kohn _v._ Central Distributing Co., 306 U.S. 531, 534 (1939); and Oklahoma Packing Co. _v._ Oklahoma Gas and Electric Co., 309 U.S. 4, 9 (1940).

[73] 254 U.S. 443 (1921).

[74] Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance _v._ Sanitary Grocery Co., 303 U.S. 552 (1938).

[75] In addition to the cases cited in note 2, [Transcriber's Note: Reference is to Footnote 74, above.] _see_ Milk Wagon Drivers' Union _v._ Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940).

[76] 319 U.S. 182 (1943).

[77] Ibid. 187, quoting Cary _v._ Curtis, 3 How. 236, 245 (1845).

[78] 321 U.S. 414 (1944).

[79] Washington-Southern Navigation Co. _v._ Baltimore Co., 263 U.S. 629 (1924).

[80] 10 Wheat. 1 (1825).

[81] 106 U.S. 272, 280 (1882).

[82] Washington-Southern Navigation Co. _v._ Baltimore Co., 263 U.S. 629, 635, 636 (1924).

[83] McDonald _v._ Pless, 238 U.S. 264, 266 (1915); Griffin _v._ Thompson, 2 How. 244, 257 (1844).

[84] Gumbel _v._ Pitkin, 124 U.S. 131 (1888); Covell _v._ Heyman, 111 U.S. 176 (1884), and Buck _v._ Colbath, 3 Wall. 334 (1866).

[85] Eberly _v._ Moore, 24 How. 147 (1861); Arkadelphia Milling Co. _v._ St. Louis S.W.R. Co., 249 U.S. 134 (1919).

[86] Gagnon _v._ United States, 193 U.S. 451, 458 (1904).

[87] 2 Wall. 123, 128-129 (1864).

[88] 253 U.S. 300 (1920).

[89] Ibid. 312.

[90] Ex parte Secombe, 19 How. 9, 13 (1857).

[91] 4 Wall. 333 (1867).

[92] Ibid. 378-380. For an extensive treatment of disbarment and American and English precedents thereon, _see_ Ex parte Wall, 107 U.S. 265 (1883).

[93] Reorganization of the Judiciary, Hearings on S. 1392; 75th Cong., 1st sess., 1937, Pt. 3, p. 491. Justices Van Devanter and Brandeis approved the letter. For earlier proposals to have the Court sit in divisions, _see_ Felix Frankfurter and James M. Landis, The Business of the Supreme Court, pp. 81-83, (New York, 1928).

[94] 1 Stat. 73-74, Sec. 2-3.

[95] Ibid. 73, 74-76; Sec. 4-5.

[96] 2 Stat. 89.

[97] 2 Stat. 132. For a general account of the events leading to the acts of 1801 and 1802, _see_ Felix Frankfurter and James M. Landis, The Business of the Supreme Court; a study in the federal judicial system (New York, 1928), pp. 25-32. This book also contains an excellent account of the organization and reorganization of the judiciary by statute from time to time. For another account of the acts of 1801 and 1802 _see_ Charles Warren, The Supreme Court in United States History (Boston, Rev. ed., 1932), 189-215.

[98] 1 Cr. 299, 309 (1803).

[99] 38 Stat. 208, 219-221.

[100] Prior to the act of 1913 Congress had voted to abolish the Commerce Court, but President Taft vetoed the bill which converted the Commerce Court judges into ambulatory circuit judges. For a general account of the abolition of the Commerce Court, _see_ Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York, 1928), pp. 166-173.

[101] Evans _v._ Gore, 253 U.S. 245 (1920).

[102] 268 U.S. 501 (1925).

[103] 307 U.S. 277 (1939).

[104] Ibid. 278-282.

[105] Ibid. 282.

[106] 289 U.S. 516, 526 (1933).

[107] 289 U.S. 553 (1933).

[108] 36 Stat. 539 (1910). For the legislative history of the Commerce Court _see_ Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York, 1928), pp. 155-164.

[109] 56 Stat. 23, 31-33.

[110] In Lockerty _v._ Phillips, 319 U.S. 182 (1943), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained.

[111] 321 U.S. 414 (1944).

[112] Ibid. 444.

[113] Ibid. 468.

[114] Pet. 511 (1928).

[115] Ibid. 546.

[116] Ibid. 546. Closely analogous to the territorial courts are extraterritorial and consular courts created in the exercise of the foreign relations power. _See_ In re Ross, 140 U.S. 453 (1891).

[117] 279 U.S. 438 (1929).

[118] Ibid. 451.

[119] Gordon _v._ United States, 117 U.S. 697 (1886); McElrath _v._ United States, 102 U.S. 426 (1880); Williams _v._ United States, 289 U.S. 553 (1933).

[120] United States _v._ Coe, 155 U.S. 76 (1894).

[121] Wallace _v._ Adams, 204 U.S. 415 (1907).

[122] Old Colony Trust Co. _v._ Commissioner of Internal Revenue, 279 U.S. 716 (1929); Ex parte Bakelite Corporation, 279 U.S. 438 (1929).

[123] The general tendency in the evolution of legislative courts is to provide for tenure during good behavior. This is true of the judges of the Court of Claims, the Customs Court, the Court of Customs and Patent Appeals. The terms of the judges of the Tax Court are limited to twelve years and the judges are subject to removal by the President after notice and hearing. For the provisions of the statutes governing these matters _see_ 28 U.S.C. Sec. 241, 296, 301-301a; 26 U.S.C. Sec. 1102b, d, f. The territorial judges in Alaska (48 U.S.C. Sec. 112) have four-year terms subject to removal by the President; in Hawaii six years unless removed by the President (48 U.S.C. Sec. 643), eight years in Puerto Rico (28 U.S.C. Sec. 803); eight years in the Canal Zone subject to removal by the President (48 U.S.C. Sec. 1353); and four years in the Virgin Islands unless sooner removed by the President (48 U.S.C. Sec. 1405y).

[124] 141 U.S. 174 (1891).

[125] Ibid. 188

[126] 289 U.S. 553 (1933).

[127] 268 U.S. 501 (1925).

[128] 117 U.S. 697 (1886).

[129] 13 How. 40, 48 (1852). _See also_ Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923); Federal Radio Commission _v._ General Electric Co., 231 U.S. 464 (1930).

[130] 5 Wall. 419 (1867).

[131] Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 (1930); Pope _v._ United States, 323 U.S. 1 (1944).

[132] 112 U.S. 50 (1884).

[133] Keller _v._ Potomac Electric Co., 261 U.S. 428 (1923).

[134] Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 (1930).

[135] 279 U.S. 438 (1929). All of these rulings with respect to the vesting of revisory powers in the courts of the District carried the qualification that revisory actions and interlocutory opinions, as nonjudicial functions, were not reviewable on appeal to the Supreme Court of the United States. Frasch _v._ Moore, 211 U.S. 1 (1908); E.C. Atkins & Co. _v._ Moore, 212 U.S. 285 (1909); Keller _v._ Potomac Electric Co., 261 U.S. 428 (1923); Federal Radio Commission _v._ General Electric Co., 281 U.S. 464 (1930).

[136] O'Donoghue _v._ United States, 289 U.S. 516 (1933).

[137] Ibid. 545-546.

[138] Ibid. 545. Chief Justice Hughes in a dissent joined by Justice Van Devanter and Cardozo took the position that the plenary power of Congress over the District is complete in itself and its power to create courts in the District is not derived from article III. Consequently, they argued that the limitations of article III do not apply to the organization of such courts. The O'Donoghue Case is discussed in the opinions of Justices Jackson and Rutledge and in the dissent of Chief Justice Vinson in National Mutual Insurance Co. _v._ Tidewater Transfer Co., 337 U.S. 582, 601-602, 608-611, 638-640 (1949).

[139] 6 Wheat. 264 (1821).

[140] Ibid. 378.

[141] Miller, Constitution, 314, quoted in Muskrat _v._ United States, 219 U.S. 346, 356 (1911).

[142] 9 Wheat. 738, 819 (1824).

[143] 2 Dall. 419, 431, 432 (1793).

[144] In re Pacific Railway Commission, 32 F. 241, 255 (1887). Justice Field repeated the substance of this definition in Smith _v._ Adams, 130 U.S. 167, 173-174 (1889).

[145] 219 U.S. 346, 357 (1911).

[146] Ibid. 361-362. Judicial power is here defined by Justice Day as "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction." Ibid. 361.

[147] Muskrat _v._ United States, 219 U.S. 346 (1911); Chicago & Grand Trunk R. Co. _v._ Wellman, 143 U.S. 339 (1892); Lampasas _v._ Bell, 180 U.S. 276 (1901); Braxton County Court _v._ West Virginia, 208 U.S. 192 (1908); Smith _v._ Indiana, 191 U.S. 138 (1903); Tregea _v._ Modesto Irrigation District, 164 U.S. 179 (1896).

[148] 143 U.S. 339 (1892).

[149] Ibid. 345.

[150] Muskrat _v._ United States, 219 U.S. 346 (1911).

[151] Lampasas _v._ Bell, 180 U.S. 276, 284 (1901).

[152] Braxton County Court _v._ West Virginia, 208 U.S. 192 (1908).

[153] Ibid. 198.

[154] Smith _v._ Indiana, 191 U.S. 138, 149 (1903).

[155] Tregea _v._ Modesto Irrigation District, 164 U.S. 179 (1896).

[156] Coffman _v._ Breeze Corporations, Inc., 323 U.S. 316, 324-325 (1945), citing Tyler _v._ The Judges, 179 U.S. 405 (1900); Hendrick _v._ Maryland, 235 U.S. 610 (1915).

[157] Fleming _v._ Rhodes, 331 U.S. 100, 104 (1947). _See also_ Blackmer _v._ United States, 284 U.S. 421, 442 (1932); Virginian R. Co. _v._ System Federation, 300 U.S. 515 (1937); Carmichael _v._ Southern Coal & Coke Co., 301 U.S. 495, 513 (1937).

[158] 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying the tax appears to be Dodge _v._ Woolsey, 18 How. 331 (1856) which involved the validity of an Ohio tax. The suit was entertained on the basis of English precedents. A case similar to the Pollock Case is Brushaber _v._ Union Pacific R. Co., 240 U.S. 1 (1916). Hawes _v._ Oakland, 104 U.S. 450 (1881) is cited in the Pollock Case, although it in fact threw out a stockholder's suit.

[159] _Cf._ Cheatham et al. _v._ United States, 92 U.S. 85 (1875); and Snyder _v._ Marks, 109 U.S. 189 (1883).

[160] Smith _v._ Kansas City Title Co., 255 U.S. 180, 201, 202 (1921).

[161] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936). Although the holdings of the plaintiffs amounted to only one-three hundred and fortieth of the preferred stock, the Court ruled that the right to maintain the suit was not affected by the smallness of the holdings.

[162] 298 U.S. 238 (1936).

[163] Robert L. Stern, in The Commerce Clause and the National Economy, 59 Harv. L. Rev. 645, 667-668 (1948), gives the following account of the litigation in the first bituminous coal case: On the same day that the Bituminous Coal Act became law, the directors of the Carter Coal Company met in New York. James Carter presented a letter saying the Coal Act was unconstitutional and that the company should not join the Code. His father agreed that the act was invalid, but thought the company should not take the risk of paying the tax required of nonmembers in the event the act should be sustained. The third director agreed with the elder Carter, and the board passed a resolution rejecting James Carter's proposals. This action was subsequently approved by a majority of the voting stock held by James Carter's father and mother who outvoted him and his wife.

[164] Massachusetts _v._ Mellon, 262 U.S. 447, 487 (1923). _See also_ Williams _v._ Riley, 280 U.S. 78 (1929).

[165] Fairchild _v._ Hughes, 258 U.S. 126 (1922).

[166] Ex parte Levitt, 302 U.S. 633 (1937). _See_, however, Massachusetts State Grange _v._ Benton, 272 U.S. 525 (1926), where the Supreme Court, though affirming the dismissal of a suit to enjoin a day-light-saving statute, nonetheless, sustained the jurisdiction of the district court to entertain the suit.

[167] Alabama Power Co. _v._ Ickes, 302 U.S. 464, 480-481 (1938).

[168] 333 U.S. 203 (1948).

[169] 342 U.S. 429 (1952). _See_ p. 763 (Amendment I).

[170] 6 Wall. 50, 64 (1868). _See also_ State of Mississippi _v._ Johnson, 4 Wall. 475 (1867).

[171] 6 Wall. at 76.

[172] 262 U.S. 447 (1923).

[173] 42 Stat. 224 (1921).

[174] 262 U.S. 447, 484-485. _See also_ New Jersey _v._ Sargent, 269 U.S. 328, 338-340 (1926), where the Court refused jurisdiction of a suit to enjoin the federal water power act because of its effect on the conservation of potable waters in New Jersey. A similar situation arose in Arizona _v._ California, 283 U.S. 423, 450 (1931), where the Court declined to take jurisdiction of an injunction suit to restrain the Secretary of the Interior and the five States of the Colorado River Compact from constructing Boulder Dam.

[175] Georgia _v._ Pennsylvania R. Co., 324 U.S. 439 (1945).

[176] Missouri _v._ Holland, 252 U.S. 416 (1920).

[177] Georgia _v._ Tennessee Copper Co., 206 U.S. 230 (1907).

[178] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 (1945).

[179] Giles _v._ Harris, 189 U.S. 475, 486 (1903).

[180] 258 U.S. 158 (1922).

[181] Ibid. 162.

[182] 297 U.S. 288, 324 (1936).

[183] 274 U.S. 488 (1927).

[184] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324 (1936).

[185] 283 U.S. 423 (1931).

[186] 330 U.S. 75 (1947).

[187] Ibid. 89-91. Justices Black and Douglas wrote separate dissents, but each contended that the controversy was justiciable. Justice Douglas could not agree that the men should violate the act and lose their jobs in order to test their rights.

[188] Ex parte Steele, 162 F. 694, 701 (1908).

[189] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518 (1852); United States _v._ Chambers, 291 U.S. 217 (1934); Mills _v._ Green, 159 U.S. 651 (1895); United States _v._ Evans, 213 U.S. 297 (1909).

[190] Mills _v._ Green, 159 U.S. 651 (1895). This case came to the Supreme Court on appeal from a decree of the circuit court of appeals dissolving an injunction restraining certain registration officials from excluding the appellant from the voting list. However, the election in which appellant desired to vote was held prior to the appeal, and the case thereby became moot. _See also_ St. Pierre _v._ United States, 319 U.S. 41 (1943).

[191] Ibid. 653.

[192] Keim _v._ United States, 177 U.S. 290, 293 (1900); Georgia _v._ Stanton, 6 Wall. 50, 71 (1868).

[193] 14 Pet. 497 (1840).

[194] Ibid. 516.

[195] Ibid., and Kendall _v._ United States ex rel. Stokes, 12 Pet. 524, 621 (1838); _see also_ Marbury _v._ Madison, 1 Cr. 137 (1803).

[196] Mississippi _v._ Johnson, 4 Wall. 475 (1867).

[197] Georgia _v._ Stanton, 6 Wall. 50 (1868).

[198] Ibid.

[199] 4 Wall. 475 (1867).

[200] 12 Pet. 524 (1838).

[201] 1 Cr. 137, 170 (1803).

[202] 7 How. 1 (1849).

[203] Ibid. 41.

[204] Ibid. 42-45.

[205] This classification follows in the main that of Melville Fuller Weston, Political Questions, 38 Harv. L. Rev. 296 (1925).

[206] Field _v._ Clark, 143 U.S. 649 (1892).

[207] Coleman _v._ Miller, 307 U.S. 433 (1939).

[208] Foster _v._ Neilson, 2 Pet. 253 (1829). _See_ p. 472, supra.

[209] Commercial Trust Co. of New Jersey _v._ Miller, 262 U.S. 51 (1923).

[210] United States _v._ Anderson, 9 Wall. 56 (1870).

[211] Luther _v._ Borden, 7 How. 1 (1849); Pacific States Telephone & Telegraph Co. _v._ Oregon, 223 U.S. 118 (1912).

[212] Luther _v._ Borden, 7 How. 1 (1849).

[213] McPherson _v._ Blacker, 146 U.S. 1 (1892), where the Court refused to pass upon the act of the Michigan legislature in 1892 providing for the election of presidential electors by Congressional districts.

[214] South _v._ Peters, 339 U.S. 276 (1950).

[215] Colegrove _v._ Green, 328 U.S. 549 (1946).

[216] Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Georgia _v._ Stanton, 6 Wall. U.S. 50 (1868); Cherokee Nation _v._ Georgia, 5 Pet. 1 (1831).

[217] 143 U.S. 649, 670-672 (1892).

[218] Coleman _v._ Miller, 307 U.S. 433, 450 (1939).

[219] Ibid. 452-453.

[220] 328 U.S. 549 (1946).

[221] 287 U.S. 1 (1932). This case involved an unsuccessful attempt to enjoin an election of representatives in Congress in Mississippi because the districts formed by the legislature for that purpose were not a contiguous and compact territory and of equal population and that the redistricting violated article I, Sec. 4 and the Fourteenth Amendment. The Court held that the provisions of the Reapportionment Act of 1929 did not reenact the requirements of the act of 1911 and that it was therefore unnecessary to determine whether the questions raised were justiciable.

[222] 285 U.S. 355 (1932). Here the Court held that the act of the Minnesota legislature redistricting the State required the governor's signature, and that representatives should be chosen at large until a redistricting was passed.

[223] 328 U.S. 549, 565-566.

[224] Ibid. 566 ff.

[225] 335 U.S. 281 (1948).

[226] 335 U.S. 160 (1948).

[227] 339 U.S. 276 (1950).

[228] Charles Warren, The Supreme Court in United States History, I, (Boston, 1922), 110-111. For the full correspondence _see_ 3 Correspondence and Public Papers of John Jay (1890-1893), (edited by Henry Phelps Johnston), 486. According to E.F. Albertsworth, Advisory Functions in Federal Supreme Court, 23 Georgetown L.J., 643, 644-647 (May 1935), the Court rendered an advisory opinion to President Monroe in response to a request for legal advice on the power of the Government to appropriate federal funds for public improvements by responding that Congress might do so under the war and postal powers. The inhibitions of the Court against advisory opinions do not prevent the individual Justices from giving advice or aiding the political departments in their private capacities. Ever since Chief Justice Jay went on a mission to England to negotiate a treaty the members of the Court have performed various nonjudicial functions. John Marshall served simultaneously as Secretary of State and Chief Justice, and later Justice Robert Jackson served as war crimes prosecutor.

[229] For example, Muskrat _v._ United States, 219 U.S. 346, 354 (1911); Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 U.S. 103, 113 (1948); United Public Workers of America _v._ Mitchell, 330 U.S. 75, 89 (1947).

[230] Chicago & Southern Airlines _v._ Waterman Steamship Corp., 333 U.S. 103, 113-114 (1948), citing Hayburn's Case, 2 Dall. 409 (1792); United States _v._ Ferreira, 13 How. 40 (1852); Gordon _v._ United States, 117 U.S. 697 (1864); In re Sanborn, 148 U.S. 222 (1893); Interstate Commerce Commission _v._ Brimson, 154 U.S. 447 (1894); La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899); Muskrat _v._ United States, 219 U.S. 346 (1911); United States _v._ Jefferson Electric Co., 291 U.S. 386 (1934).

[231] Muskrat _v._ United States, 219 U.S. 346 (1911).

[232] United States _v._ Ferreira, 13 How. 40 (1852).

[233] United Public Workers of America _v._ Mitchell, 330 U.S. 75, 89 (1947). Here, Justice Reed, for the Court, after asserting that constitutional courts do not render advisory opinions, declared that "'concrete legal issues, presented in actual cases, not abstractions,' are requisite" for the adjudication of constitutional issues, citing Electric Bond and Share Co. _v._ Securities & Exchange Commission, 303 U.S. 419, 443 (1938); United States _v._ Appalachian Electric Power Co., 311 U.S. 377, 423 (1940); Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 (1945); and Coffman _v._ Breeze Corporations, 323 U.S. 316, 324 (1945).

[234] 13 How. 40 (1852).

[235] 117 U.S. 697 (1864).

[236] 273 U.S. 70 (1927). In Willing _v._ Chicago Auditorium Association, 277 U.S. 274 (1928) certain lessees desired to ascertain their rights under a lease to demolish a building after the lessors had failed to admit such rights on the allegation that claims, fears, and uncertainties respecting the rights of the parties greatly impaired the value of the leasehold. Because there was no showing that the lessors had hampered the full use of the premises or had committed or threatened a hostile act, the Supreme Court sustained the decree of the lower Court dismissing the bill on the ground that the plaintiff was seeking a mere declaratory judgment. The Court admitted that the proceeding was not moot, that there were adverse parties with substantial interests, and that a final judgment could have been rendered, but held, nonetheless, that the proceeding was not a case or controversy merely because plaintiffs were thwarted by its own doubts, or by the fears of others. Ibid. 289-290.

[237] 219 U.S. 346 (1911).

[238] 274 U.S. 123 (1927).

[239] 288 U.S. 249, 264 (1933).

[240] 300 U.S. 227, 240 (1937).

[241] 28 U.S.C.A. Sec. 2201, 2202; 48 Stat. 955.

[242] 300 U.S. 227, 240-241 (1937). The Court distinguished between a justiciable controversy and a dispute of an abstract character, emphasized that the controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests, and reiterated the necessity of "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."

[243] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288, 324-325 (1936).

[244] 303 U.S. 419, 443 (1938).

[245] Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450, 461 (1945), citing Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933); Aetna Life Insurance Co. _v._ Haworth, 300 U.S. 227 (1937); Maryland Casualty Co. _v._ Pacific Co., 312 U.S. 270, 273 (1941); Great Lakes Co. _v._ Huffman, 319 U.S. 293, 299, 300 (1943); and Coffman _v._ Breeze Corporation, 323 U.S. 316 (1945). Here, as in other cases, the Court refused to entertain hypothetical, or contingent questions, and the decision of constitutional issues prematurely. For this same rule _see also_, Altvater _v._ Freeman, 319 U.S. 359, 363 (1943).

[246] 306 U.S. 1 (1939).

[247] 307 U.S. 325 (1939).

[248] 312 U.S. 270 (1941).

[249] 300 U.S. 227 (1937).

[250] Maryland Casualty Co. _v._ Pacific Coal & Oil Co., 312 U.S. 270, 273, (1941).

[251] Brillhart _v._ Excess Insurance Co., 316 U.S. 491 (1942). This was a diversity of citizenship case which presented only local questions.

[252] Cohens _v._ Virginia, 6 Wheat. 264, 378 (1821).

[253] Stat. 73, 85-86.

[254] 1 Wheat. 304 (1816).

[255] 6 Wheat. 264 (1821).

[256] Ibid. 379.

[257] Ibid. 422-423. In Martin _v._ Hunter's Lessee, 1 Wheat. 304 (1816), Justice Story had traversed some of these same grounds. He, too, began with the general assumptions that the Constitution was established by the people of the United States and not by the States in their sovereign capacities, that the Constitution is to be construed liberally, and that the National Government is supreme in relation to its objects; and had concluded that the Supreme Court had authority to review State court decisions under the express provisions of articles III and VI, and also from the necessity that final decision must rest somewhere and from the importance and necessity of uniformity of decisions interpreting the Constitution. Many years later in Ableman _v._ Booth, 21 How. 506, 514-523 (1859), where the Wisconsin Supreme Court, like the Virginia Courts earlier, had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, Chief Justice Taney on grounds both of dual sovereignty and national supremacy was even more emphatic in his rebuke of State pretensions. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree beyond that envisaged even by Marshall and Story. As late as 1880 the questions presented in the foregoing cases were before the Court in Williams _v._ Bruffy, 102 U.S. 248 (1880), which again involved the refusal of a Virginia court to enforce a mandate of the Supreme Court. By the act of December 23, 1914, 38 Stat. 790, the 25th section of the Judiciary Act of 1789 which was carried over with modifications into the Revised Statutes, Sec. 690; 28 U.S.C. Sec. 344 was amended so as to provide for review of State court decisions on certiorari whether the federal claim is sustained or denied. These provisions are now contained in 28 U.S.C.A. 1257 (1948).

The first case involving invalid State legislation arose under a treaty of the United States. Ware _v._ Hylton, 3 Dall. 199 (1797). In Calder _v._ Bull, 3 Dall. 386 (1798), the Court sustained a State statute as not being an _ex post facto_ law. The first case in which a State statute was held invalid as a violation of the Constitution was Fletcher _v._ Peck, 6 Cr. 87 (1810), which came to the Supreme Court by appeal from a United States circuit court and not by a writ of error under section 25. Famous cases coming to the Court under section 25 were Sturges _v._ Crowninshield, 4 Wheat. 122, McCulloch _v._ Maryland, 4 Wheat. 316, and Dartmouth College _v._ Woodward, 4 Wheat. 518. All three were decided in 1819 and the State legislation involved in each was held void.

[258] That the great majority of the most influential members of the Convention of 1787 thought the Constitution secured to courts in the United States the right to pass on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case: Gerry and King of Massachusetts, Wilson and Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph, Madison, and Mason of Virginia, Dickinson of Delaware, Yates and Hamilton of New York, Rutledge and Charles Pinckney of South Carolina, Davie and Williamson of North Carolina, Sherman and Ellsworth of Connecticut. _See_ Max Farrand, Records of the Federal Convention (Yale Univ. Press, 1913); I, 97 (Gerry), 109 (King); II, 73 (Wilson), 76 (Martin), 78 (Mason), 299 (Dickinson and Morris), 428 (Rutledge), 248 (Pinckney), 376 (Williamson), 28 (Sherman), 93 (Madison); III, 220 (Martin, in "Genuine Information"). The Federalist: Nos. 39 and 44 (Madison), Nos. 78 and 81 (Hamilton). Elliot's Debates (ed. of 1836), II, 1898-1899 (Ellsworth), 417 and 454 (Wilson), 336-337 (Hamilton); III, 197, 208, 431 (Randolph), 441 (Mason), 484-485 (Madison); IV, 165 (Davie). P.L. Ford, Pamphlets on the Constitution, 184 (Dickinson, in "Letters of Fabius"). Ford, Essays on the Constitution, 295 (Robert Yates, writing as "Brutus"). True these are only seventeen names out of a possible fifty-five, but they designate fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution (Gorham, Rutledge, Randolph, Ellsworth, and Wilson) and four of the five members of the Committee of Style which gave the Constitution final form (Johnson, Hamilton, Gouverneur Morris, Madison, and King). Against them are to be pitted, in reference to the question under discussion, only Mercer of Maryland, Bedford of Delaware, and Spaight of North Carolina, the record in each of whose cases is of doubtful implication.