In one circuit, the judges thinking it improper to act under this statute in their judicial capacity, for the reason above-named, consented from charitable motives to serve as “commissioners.”[27]
In the Pennsylvania circuit, the three judges wrote, in a letter to the President, that “on a late painful occasion” they had held the law invalid; and they now stated the matter to him, as being the person charged with the duty of “taking care that the laws be faithfully executed.” They assured him that while this judicial action of disregarding an act of Congress had been necessary, it was far from pleasant.
The judges of another circuit, before which no case had come, wrote a similar letter to the President, declaring their reasons for thinking the law invalid.
In this same year, 1792, the Pennsylvania case came regularly up to the Supreme Court, and was argued there.[28] This might have produced a decision, but none was ever given; and in the next year a change in the statute provided relief for the pension claimants in another way.
It is to be remarked, then, that this matter resulted in no decision by the Supreme Court of the United States on the question of the constitutionality of the pension act; it produced only a decision at one of the circuits, and informal expressions of opinion from most of the judges.
These non-judicial communications of opinion to the President seem, as has been said, to have proceeded on the theory of furnishing information to one whose official duty it was to see that the fundamental law was faithfully carried out; just as “Councils of Revision,” established by the constitutions of Pennsylvania and Vermont, were to report periodically as to infractions of the constitution.
It was, perhaps, these practices of private communication between the President and the judges that led very soon to another interesting matter,—a formal request by the President, in 1793, for an opinion from the judges on twenty-nine questions relating to the treaties with France. This request accorded with a colonial practice of asking such opinions from judges; a usage centuries old in England, and preserved to-day in the constitutions of a few States in this country. The judges, however, declined answering these questions, “considering themselves,” says Marshall, in his “Life of Washington,” “merely as constituting a legal tribunal for the decision of controversies brought before them in legal form.”[29] Although this seems to have been obviously the right course, since the proposition to give power to put questions to the judges in this way had been considered in the Federal Convention and not allowed, yet we may remark how convenient such a power would often have proved. If it be admitted, as it always has been in England, and is, almost universally, here, that such opinions are merely learned advice and bind nobody, not even the judges, they would often afford the executive and Congress much needed and early help upon constitutional questions in serious emergencies; such, for example, as have lately presented themselves in our own history.
After this, there was an occasional allusion in the opinions of the Supreme Court to the question of the power of that court to pass on the constitutionality of Federal enactments as being an undecided and more or less doubtful question. But not until 1803, early in Marshall’s time, was the point judicially presented to the Supreme Court. It came up in the case of Marbury v. Madison,[30] the first case at the third term after any opinions of Marshall were reported. In that case, an act of Congress was declared unconstitutional.
It was more than half a century before that happened again.