Thomas B. Reed

[Speech of Samuel F. Miller, Justice of the Supreme Court of the United States, at the annual dinner of the State Bar Association, Albany, November 20, 1878. Justice Miller spoke in response to the toast: "The Supreme Court of the United States." With the toast was associated the following sentiment from De Tocqueville: "The peace, the prosperity, and the very existence of the Union are vested in Federal Judges."]

Mr. Chairman and Gentlemen of the Association:—I perceive that in the meeting of this State Bar Association it has devolved upon me to inaugurate the talking on all occasions, [Laughter.] When I had supposed last evening that I should hear the eloquent voice of your then President, Judge Porter, to get up the enthusiasm which was necessary, I was surprised to find that he was absent, and that the distinguished gentleman who presided did not feel called upon to fill his place in that regard, though he did the honors and discharged the duties of the office very gracefully; and now when your own Governor, and when the President of the United States are toasted in advance of the body of which I have the honor to be a member, there is nobody with the respectful and cordial approval of the Association here to respond to the sentiments in their honor. But I have had the honor of sitting for a couple of hours in this body, and to find that although a moderate speaker myself, I had opened the way for a good deal of disposition to talk [applause]; and I trust it will be found that there will be a similar experience this evening, as I find here the Judges of the Court of Appeals and of the Supreme Court of this State, and others, who know how to speak, and who, no doubt, will speak in response to toasts.

The sentiment of De Tocqueville, to which I am in some sense called upon to respond, is one which those of you who have read his work on "Democracy in America," written forty-five years ago, must know has reference to a much smaller body of judges than now existing. Perhaps I shall entertain you a little by telling you about what are the Federal judges, and how many of them there are. We have fifty-seven or fifty-eight district judges who are Federal judges. We have nine judges of the Circuit Court of the United States; we have five judges of the District of Columbia; we have five judges of the Court of Claims; and we have nine judges of the Supreme Court of the United States, and these are all considered and treated as constitutional Federal judges. That is to say, they enter their offices as officers of the United States, and hold their offices during life or good behavior. We have, in addition to these, eight Territories, each of which has three judges, who are Federal judges, although in a different sense. They are not called constitutional judges—I do not know that that is a very correct distinction—and they are only appointed for four years. These are the Federal judges, the name which De Tocqueville applies to them.

You will excuse me if I talk for a few minutes about the court of which I have the honor to be a member—the Supreme Court of the United States. That court, if it is nothing else, certainly is a hard-working court. It is a court of which a great deal is required; and it is some solace for the hard work that we have to do, that we are supposed to be a court of a good deal of dignity and of a very high character. I hope you all concur. [Laughter and applause.] Just consider what the jurisdiction of that court is. There have come before that court often, States—States which in the old ante-bellum times, we called "Sovereign States"—and some of them did not come voluntarily. They were brought by the process of that court. And when one State of the Union has a question of juridical cognizance against another State of the Union, it must come to that court. A subpoena is sent, and it is brought into that court just like an individual, and it must, by the constitution of this country, submit its rights and territorial jurisdiction, and the right which accompanies that territorial jurisdiction, to the decision of that Supreme Court. Except the great court which sat on Mount Olympus, I know of no other which has ever had the right to decide, and compel States to submit to its decision. [Applause.] It is within our province to declare a law of one of these sovereign States, void, absolutely null, because it may be in conflict with the Constitution and laws of the United States; and that is a function of daily occurrence. What other court in the world has that power? To what other court has ever been submitted such a function as that—to declare the legislation of a State like New York, with five millions of population, and other States verging upon the same amount of population and wealth, to declare that the laws which you have passed in the ordinary discharge of your powers as legislators, are null and void?

It is a great power. We not only do that, but we decide that the laws which the Congress of the United States shall pass are void, if they conflict with that instrument under which we all live and move and have our being. Though we approach these subjects with regretful hesitation, it is a duty from which the court has never shrunk, and from which I presume it never will shrink as long as that court has its existence. [Applause.]

Gentlemen, I have told you about our high prerogatives; but just look at what we have done! see what it is that we are compelled to know or supposed to know—but I am very sorry to say we don't know at all. [Laughter.] We are supposed to take judicial cognizance of all questions of international law, of treaties, of prize laws, and of the law of nations generally. We take notice of it without its being specially pleaded. We take notice of the laws and statutes of every State of these thirty-eight States of the Union. They are not to be proved in our courts; they are not brought in issue, but the judge of the Federal courts, from the lowest one to the highest, is supposed to take judicial cognizance of all the statute laws, and to know them, of the whole thirty-eight States of the Union, and of the eight Territories besides. In addition to that, we are supposed to take notice of the common law of the country. We take notice of the equity principles, and we apply them now in separate courts, notwithstanding you have combined them in your processes in the State courts. We are supposed to understand the civil law on which Texas and Louisiana have framed their system of laws; and we are supposed to understand all the other laws, as I said, of the States, divergent and varied as they are. We do the best we can to understand them; but, gentlemen, permit me to say that, but for the bar which practices before us; but for the lawyers who come up from New York and Pennsylvania, and from the States of the West and of the South, to tell us what the law is; but for the instruction and aid which they afford to us, our duties would be but poorly fulfilled.

I take pleasure in saying, gentlemen, and it is the last thing that I shall trouble you with, that a bar or set of men superior in information, in the desire to impart that information to the court, a set of gentlemen in the legal profession more instructive in their arguments, could hardly be found in any country in the world. [Applause.] I doubt whether their equals are found, when you consider the variety of the knowledge which they must present to us, the topics which they discuss, the sources from which they derive the matter which they lay before us. I say that it is with pleasure that the court relies upon the lawyers of the country to enable it to perform its high functions.