State; but this right was promptly taken away by an amendment to the Constitution. Even Marshall continued to be a member of Adams' Cabinet after his appointment to the Bench, until the close of the Presiden tial term. So little was the true function of the Court understood that one of the earliest cases reported seems to have consisted of the trial of issues of fact by a jury, the charge being given by one of the Justices. It had been a Court of weak beginnings and of in significant achievements. It had not found its place in the scheme of government. When the nineteenth century came in its great work was yet before it.1 At its first session it had no cases. At the date of Marshall's appointment there were only ten cases on its docket. From 179x5 to 1800 there were decided only six cases in which the Constitution was construed. The most important constitutional question decided during that period arose in the cele brated case of Chisholm against the State of Georgia, in which it was held that under the Constitution the States had lost that common attribute of sovereignty, exemption from suit by a private citizen. This interpreta tion of the Constitution was received with surprise by the country at large, and with consternation of the debtor States. It is one of perhaps two decisions of the Supreme Court on important constitutional questions which did not at once, or in time, command approval and general acquiescence — the other is known as the Dred Scott decision. The case of Chisholm r. Georgia was prac tically repealed by an amendment to the Constitution. From the Dred Scott decision the appeal was the wager of battle, and it was wiped out in the blood of civil war. Prior to Marshall's becoming a member of the Supreme Court, the vast extent and im portance of its duties and powers were dimly understood, and few suspected what a po tent factor it was destined to become in the 1 Honorable Ilosea M. Knowlton, Attorney-General of Massachusetts.
development of the nation. The esteem in which it was held may be inferred from the fact that one of its members resigned to ac cept the office of Chancellor in his own State, a seat on its bench was declined about the same time in favor of a State Judgeship, Chief Justice Jay resigned his office to ac cept the governorship of New York, and both Jay and Ellsworth considered the duties of Chief Justice not to be incompatible with the holding of other offices at the same time. How far the Court was from the assured and exalted position it was soon to attain under its greatest Chief Justice is revealed by Jay, who, on the resignation of Ellsworth, was tendered, for the second time, the position of Chief Justice. In declining a second ap pointment, he said: "I left the bench per fectly convinced that under a system so de fective it would not obtain the energy, weight and dignity which was essential to its afford ing due support to the national government; nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess. Hence I am in duced to doubt both the propriety and ex pediency of my returning to the bench under the present system." * It is not fair to say that the court had failed in securing public confidence up to the advent of John Marshall as its Chief Justice. It is not, however, unfair or unjust to say that public attention had not been specially directed to its field of labor, and that the liti gation it had theretofore considered had not been of the character and importance to at tract general public notice, in the face of the political interests excited by the law-making department, and the personal consideration enjoyed by the eminent men who had occu pied the Chief Executive office of the Union. 2 The Court in the eleven years after its or ganization, during which Jay and Rutledge and Ellsworth — giants in those days — pre 1 Honorable Joseph P. Blair. 2 Senator Lindsay.
