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The Green Bag

is a party, to controversies between the states, or between

citizens of

differ

oﬁice from Paris in 1800. John Adams, then President, nominated Jay the second

ent states, or between citizens of the

time, who was conﬁrmed, his commission

same state claiming lands under grants

bearing date Sept. 19, 1800. Jay however declined. Perhaps the standing of the court, and the importance of its func tions as viewed by men of public aﬁairs, cannot better be shown than in his

of different states, within constitu tional limits its authority was absolute and

its

judgments

were

ﬁnal.

Al

though in dignity and the attributes of jural prerogative it was second to no court of last resort in the civilized world, and its members were removed from the vicissitudes of political changes, owing to the permanency of their tenure, po sitions upon its bench, at ﬁrst and long afterwards, were not sought or looked upon as the goal of professional ambi tion. Robert Hanson Harrison, after being commissioned an Associate Justice, resigned the oﬂice and returned his

commission to accept the position of Chancellor of the State of Maryland. John Jay, who was commissioned by Washington as the ﬁrst Chief Justice September 26, 1789, held the oﬁice until 1795, when he resigned to accept the

Governorship Rutledge,

of

of New York. South

Carolina,

John re

signed as Associate Justice to become

words declining the office, written Jan

uary 2, 1801.

“I left the bench," he

says, “perfectly convinced that under a system so defective it would not ob tain the energy, weight and dignity

which was essential to its affording due support to the national government, nor acquire the public conﬁdence and re

spect which as the last resort of the jus tice of the nation it should possess. . . . Independent of this consideration the state of my health removes every doubt."

He did not foresee that the court was yet to become “the living voice of the

Constitution." It illustrates not only the dearth of business but the fact that the judicial oiﬁce was largely looked upon as a position whose duties were not incom

patible with the holding of other public

him, but not being conﬁrmed by the Senate, William Cushing, the senior

offices, to know that Jay concurrently held the ofﬁce of Chief Justice while acting as special envoy of the United States in England, while Chief Justice Ellsworth, as we have seen, went to France as an

Associate and the ﬁrst Justice appointed from New England, was promoted, but

a quorum, as Judge Chase at the August

Chief Justice of that state, was com

missioned during a recess to succeed

declined the honor, the only instance

in the history of the court of the ad— vancement of an Associate Justice to

be its head. He was followed by Oliver Ellsworth of Connecticut, the framer ofyahthe Judiciary Act of 1789, which provided for the Circuit and District

Courts and the appellate jurisdiction of the Supreme Court. Having been appointed in October, 1799, one of the

three envoys extraordinary and minis ters plenipotentiary to France, the Chief Justice because of ill health resigned the

Ambassador.

He left the court without

term in 1800 was absent from the bench in Maryland on a political campaign in favor of the administration. If this course of action had persisted it would have wrecked whatever standing the court possessed as a seat of judgment. But this great and threatening evil soon passed.1 John Marshall, commissioned by John Adams January 31, 1801, although he retained the oﬁice of Secretary of State 1See Carson's Supreme Court of States, vol. I.

the United