[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.