publican Judgeship, was safe and cominendable to all lawyers. The majority of the Court (JAY, C. J., and IREDELL, and BLAIR, J. J.) said with much more justice, that it would be equitable to hold fast until the law had opportunity to adjudge the true ownership of the proceeds of the executions; and granted the injunction. The Court, however, finally inclined so far to the views of CUSHING as to deny to the bill any force beyond that of an injunction bill to hold until an action at law could be tried. IREDELL, J., would have sustained it as an interpleader bill, and BLAIR, J., agreed with him at the last, and this seems to be much more reasonable. (See 2 Dall, 415-8.) As the State failed in its action at law (3 Dall. 1), the matter terminated without a decision upon the distribution of the fund and the protection of the defendant and the Marshal.

Next came the great case of Chisholm v. Georgia (1793), 2 Dall. 419, where a simple citizen was allowed to sue a sovereign State, and thereby frightened the country into an Amendment to the Constitution, which has allowed any State of the Union to repudiate its debts with impunity. CUSHING went straight to the point

"Whether a State can, by the Federal Constitution, be sued by an individual citizen of another State?

"The point turns not upon the law or practice of England, although, perhaps, it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the Constitution established by the people of the United States; and particularly upon the extent of powers given to the federal judiciary in the second section of the third article of the Constitution."

Such sentiments from a man whom an enemy might have slurred as a trimmer, showed his mind to be in poise upon an American and not a foreign base.

Looking to the words of the Constitution, and not to Petitions of Right in England, and the changing law of corporations (as by IREDELL, J.); or principles of general jurisprudence and of State sovereignty, and the laws and practices of different States and Kingdoms (as by WILSON, J.); or even to the light of contemporary history upon State sovereignty (as by JAY, C. J.)-our Justice rehearsed the words of the second section and concluded

"When a citizen makes a demand against a State, of which he is not a citizen, it is really a controversy between a State and a citizen of another State, as if such

State made a demand against such citizen. The case, then, seems clearly to fall within the letter of the Constitution.

"It may be suggested that it could not be intended to subject a State to be a defendant, because it would affect the sovereignty of States. If that be the case, what shall we do with the immediately preceding clause-controversies between two or more States,' where a State must of necessity be defendant? *** Why was not an exception made, if one was intended?

"Again, what are we to do with the last clause of the section of judicial powers, viz: 'Controversies between a State, or the citizens thereof, and foreign States or citizens?' Here again, States must be suable, or liable to be made defendants by this clause, which has a similar mode of language with the other two clauses I have remarked upon.

"One design of the General Government was for managing the great affairs of peace and war and the general defence, which were impossible to be conducted, with safety, by the States separately. Incident to these powers, and for preventing controversies between foreign powers, or citizens, from rising to extremities and to an appeal to the sword, a national tribunal was necessary, amicably to decide between them, and thus ward off such fatal public calamity. Thus, States at home and their citizens, and foreign States and their citizens, are put together without distinction, upon the same footing, so far as may be, as to controversies between them. *** Further, if a State is entitled to justice in the Federal Court, against a citizen of another State, why not such citizen against the State, when the same language equally comprehends both? The rights of individuals and the justice due to them, are as dear and precious as those of States. Indeed, the latter are founded upon the former; and the great end and object of them must be, to secure and support the rights of individuals, or else, vain is Government."

Bingham v. Cabbot (1795), 3 Dall. 19, chiefly shows the accuracy of the legal judgment of CUSHING, who was chiefly moved to form his opinion, from the now undoubted principle that written papers shown to the jury (and so made Exhibits to the Bill of Exceptions to the trial judge's rulings), were neither to be received as truth, nor their statements as facts, "since they only amount to evidence," and the province of the jury is to infer facts from evidence. As a judge, it was not for him to draw the inference.

Penhallow v. Duane (1795), 3 Dall. 54, decided that the Court of Appeals which had been established by the Continental Congress, in prize cases, was really a Court whose decrees were binding. The opinion of CUSHING reads like a supplement to those of the other judges, but this is more because of its brevity than because its foundation rest on the reasoning of the other judges. We cannot fail to be charmed and instructed with the recitation of the historical facts connected with the administration of the law of prize during our

Revolution; but it was unnecessary, upon the confessed fact that the Articles of Confederation authorized the final decision in September, 1783. And such was the short way to his conclusion, which CUSHING adopted. It is a curious illustration of legal courage in a man who seemed to fear the avowal of his political principles in the perilous times of Lexington and Bunker Hill. It is a quality whose practice would save the writing of thousands of unnecessary words in our judicial opinions. For it is a safe thing to declare that of the annual flood of twelve thousand decisions, not more than one-tenth of the words used, are of any abiding value. It is the demonstration of this judicial weakness of many words, by the present habit of reporting nearly every opinion, that will create a demand for opinions which decide,—without more.

Talbot v. Jansen (1795), 3 Dall. 133, was a prize case thus explained by CUSHING

"It was in truth, a capture by Ballard, who had no authority, or color of authority, for his conduct. He was an American citizen; he had never left the United States; his vessel was owned by American citizens; and the commission, which he held by assignment, was granted by a French admiral, within the United States, to another person, for a particular purpose, but not for the purpose of capture. Then, shall not the property, which he has thus taken from a nation at peace with the United States, and brought within our jurisdiction, be restored to its owners? Every principle of justice, law, and policy, unite in decreeing the affirmative; and there is no positive compact with any power to prevent it."

The obvious answer to this form of stating the case, resulted in the unfortunate Hollander recovering his vessel, with demurrage. The brief opinion of CUSHING, and the equally brief one of RUTLEDGE, C. J., are models, not merely of brevity, but also of dealing with the controling point of the case, to the exclusion of others.

When Chief Justice RUTLEDGE failed to secure confirmation from the Senate, Washington selected CUSHING, and this nomination was unanimously confirmed January 27, 1796. After holding the commission for a few days, ill health determined CUSHING to resign it and retain his position as Associate Justice. Washington sought in vain to dissuade, and failing, appointed the great JOHN MARSHALL, to fill the vacant Chief Justiceship.

Ware v. Hylton (1796), 3 Dall. 199, was one of those trouble

some cases, where the Constitution and a treaty, made in pursuance of it, nullified a previous State statute, by giving an English creditor a full recovery. CUSHING'S opinion was the shortest, next to that of WILSON, J., and devoted solely to the few necessary observations, to the effect that the provision of the treaty was as "absolute, unconditional and peremptory" as words could express, and that the treaty, by force of the Constitution, overrode State Constitutions and laws alike. WILSON, J., however, took the most concise view, that the State made the law, and then was a party to the making of the treaty, and hence the law would be avoided, even without the Constitutional provision. This short answer to the case avoided the argument that the nullifying of a State Constitution was an odious thing. CUSHING answered that argument, by saying

"As to the rule respecting odious construction; that takes place when the meaning is doubtful, not when it is clear, as I think it is in this case. But it can hardly be considered as an odious thing, to enforce the payment of an honest debt, according to the true intent and meaning of the parties contracting; especially if, as in this case, the State, having received the money, is bound in justice and honor, to indemnify the debtor for what it in fact received."

Calder v. Bull (1798), 3 Dall. 386, called for a definition of an ex post facto law. The Legislature of Connecticut, by resolution of May, 1795, set aside a decree of the Probate Court of Hartford, and granted a new hearing in a will case, with right to appeal. At the time of the decree in 1793, there was no law allowing such rehearing and appeal, and this resolution was in fact ex post facto. CUSHING'S whole opinion was as follows

"The case appears to me to be clear of all difficulty, taken either way. If the act is a judicial one, it is not touched by the Federal Constitution; and, if it is a legislative act, it is maintained and justified by the ancient and uniform practice of the State of Connecticut."

CHASE, J., devoted his opinion to an exposition of strict construction of the Constitution, of no validity now.

PATTERSON, J., would have construed the prohibition of the Constitution, to prevent any retrospective law. IREDELL, J., thought the resolution, a judicial act when tested by the usage of Connecticut. But these three judges all agreed that an ex

post facto law related only to criminal cases, and such is now the established exposition of the Constitution.

Fenemore v. U. S. (1797), 3 Dall. 357, a case of fraud upon the government; Fowler v. Lindsey (1799), Id. 411, a case of ejectment for lands lying on the borders of New York and Connecticut; Cooper v. Telfair (1800), 4 Id. 14, where a bill of attainder had been passed by the legislature of Georgia; contain nothing of especial interest to the biographer.

After a considerable interval, we meet the unimportant opinion in Ogden v. Blackledge in 1804 (2 Cranch 272); in the next year, Lambert's Lessee v. Paine (3 Cranch 97), which latter arose over the construction of a devise without words of inheritance; Marine Ins. Co. v. Wilson, and the Marine Ins. Co. cases against Wilson and Tucker (3 Cranch 187, 357); and in 1806, the case of U. S. v. Heth and Randolph v. Ware (Id. 399, 503). Severe illness prevented CUSHING from sitting during February Term, 1807, and the first opinion of importance was not delivered by CUSHING until McIlvaine v. Coxe's Lessee (1808), 4 Cranch 209, when the title to lands in New Jersey depended upon the right of that State to compel its inhabitants to become citizens, or lose their estates. That right was declared, CUSHING saying—

"This opinion is predicated upon a principle which is believed to be undeniable, that the several States which composed the Union, so far at least as regarded their municipal regulations, became entitled, from the time when they declared themselves independent, to all the rights and powers of sovereign States, and that they did not derive them from concessions made by the British King. The treaty of peace contains a recognition of their independence, not a grant of it”: Id. 212.

In another suit against the same Marine Insurance Company (1809: 5 Cranch 100), opinions were written by CUSHING and JOHNSON, both discussing questions of pleading, and especially whether an extravagant overvaluation of a vessel should result in the underwriter being relieved altogether.

CUSHING thought not, as the valuation was not intentionally fraudulent and a jury could not give the true valuation, and so relieve against the excess; but JOHNSON looked to the probabilities of fraud, as the interests of the ship owner would induce him to sink the vessel, though recognizing the difficulties of a decision, as a matter of law, upon what excessive