ension claims, their determinations to be
reviewable by the Secretary of the Treasury. In protests which they
filed with the President, the judges stated the dilemma which confronted
them: either the new duty was a judicial one or it was not; if the
latter, they could not perform it, at least not in their capacity as
judges; if the former, then their decisions were not properly reviewable
by an executive officer. Washington promptly sent the protests to
Congress, whereupon some extremists raised the cry of impeachment; but
the majority hastened to amend the Act so as to meet the views of the
judges.*** Four years later, in the Carriage Tax case,**** the
only question argued before the Court was that of the validity of a
congressional excise. Yet as late as 1800 we find Justice Samuel Chase
of Maryland, who had succeeded Blair in 1795, expressing skepticism as
to the right of the Court to disallow acts of Congress on the ground of
their unconstitutionality, though at the same time admitting that the
prevailing opinion among bench and bar supported the claim.

* 2 Dallas, 419.

** Ware vs. Hylton, 3 ib., 199.

*** See 2 Dallas, 409.

**** Hylton vs. United States, 3 Dallas, 171.

The great lack of the Federal Judiciary during these early years, and
it eventually proved well-nigh fatal, was one of leadership. Jay was
a satisfactory magistrate, but he was not a great force on the Supreme
Bench, partly on account of his peculiarities of temperament and his
ill-health, and partly because, even before he resigned in 1795 to run
for Governor in New York, his judicial career had been cut short by
an important diplomatic assignment to England. His successor, Oliver
Ellsworth, also suffered from ill health, and he too was finally
sacrificed on the diplomatic altar by being sent to France in 1799.
During the same interval there were also several resignations among the
associate justices. So, what with its shifting personnel, the lack
of business, and the brief semiannual terms, the Court secured only a
feeble hold on the imagination of the country. It may be thought, no
doubt, that judges anxious to steer clear of politics did not require
leadership in the political sense. But the truth of the matter is that
willy-nilly the Federal Judiciary at this period was bound to enter
politics, and the only question was with what degree of tact and
prudence this should be done. It was to be to the glory of Marshall t