For two generations statesmen and jurists debated the relation of the central to the local sovereignties with no result, for words alone could decide no such issue. In America, as elsewhere, sovereignty is determined by physical force. Marshall could not conquer Jefferson, he could at most controvert Jefferson's theory. This he did, but, in doing so, I doubt if he were quite true to himself. Jefferson contended that every state might nullify national legislation, as conversely Pinckney wished Congress to be given explicitly the power to nullify state legislation; and Marshall, very sensibly, pointed out that, were Jefferson's claim carried into practice, it would create "a hydra in government,"[10] yet I am confident that Marshall did not appreciate whither his own a.s.sertion of authority must lead. In view of the victory of centralization in the Civil War, I will agree that the Supreme Court might have successfully maintained a position as arbitrator touching conflicting jurisdictions, as between the nation and the states, but that is a different matter from a.s.suming to examine into the wisdom of the legislation itself. The one function might, possibly, pa.s.s by courtesy as judicial; the other is clearly legislative.

This distinction only developed after Marshall's death, but the resentment which impelled Marshall to annul an act of Congress was roused by the political conflict which preceded the election of 1800, in which Marshall took a chief part. Apparently he could not resist the temptation of measuring himself with his old adversary, especially as he seems to have thought that he could discredit that adversary without giving him an opportunity to retaliate.

In 1798 a Federalist Congress pa.s.sed the Alien and Sedition Acts, whose const.i.tutionality no Federalist judge ever doubted, but which Jefferson considered as clearly a violation of the fundamental compact, since they tended to drive certain states, as he thought, into "revolution and blood." Under this provocation Jefferson proclaimed that it was both the right and the duty of any state, which felt itself aggrieved, to intervene to arrest "the progress of the evil," within her territory, by declining to execute, or by "nullifying," the objectionable statutes.

As Jefferson wrote the Kentucky Resolutions in 1798 and was elected President in 1800, the people at least appeared to have sustained him in his exposition of the Const.i.tution, before he entered into office.

At this distance of time we find it hard to realize what the election of 1800 seemed to portend to those who partic.i.p.ated therein. Mr. Jefferson always described it as amounting to a revolution as profound as, if less b.l.o.o.d.y than, the revolution of 1776, and though we maybe disposed to imagine that Jefferson valued his own advent to power at its full worth, it must be admitted that his enemies regarded it almost as seriously.

Nor were they without some justification, for Jefferson certainly represented the party of disintegration. "Nullification" would have been tantamount to a return to the condition of the Confederation. Besides, Jefferson not so many years before had written, in defence of Shays's rebellion, that the tree of Liberty could never flourish unless refreshed occasionally with the blood of patriots and tyrants. To most Federalists Jefferson seemed a bloodthirsty demagogue. In 1796 Oliver Ellsworth had been appointed Chief Justice by General Washington in the place of Jay, who resigned, and in 1799 John Adams sent Ellsworth as an envoy to France to try to negotiate a treaty which should reestablish peace between the two countries. Ellsworth succeeded in his mission, but the hardships of his journey injured his health, and he, in turn, resigned in the autumn of 1800. Then Adams offered the Chief Justiceship to Jay, but Jay would not return to office, and after this the President selected his Secretary of State, John Marshall, one of the greatest of the great Virginians, but one of Jefferson's most irreconcilable enemies. Perhaps at no moment in his life did John Adams demonstrate his legal genius more convincingly than in this remarkable nomination. Yet it must be conceded that, in making John Marshall Chief Justice, John Adams deliberately chose the man whom, of all his countrymen, he thought to be the most formidable champion of those views which he himself entertained, and which he conceived that he had been elected President to advance. Nor was John Adams deceived. For thirty-four years John Marshall labored ceaselessly to counteract Jefferson's const.i.tutional principles, while Jefferson always denounced the political partiality of the federal courts, and above all the "rancorous hatred which Marshall bears to the government of his country, and ... the cunning and sophistry within which he is able to enshroud himself."[11]

No one, at this day, would be disposed to dispute that the Const.i.tution, as a device to postpone war among the states, at least for a period, was successful, and that, as I have already pointed out, during the tentative interval which extended until Appomattox, the Supreme Court served perhaps as well, in ordinary times, as an arbiter between the states and the general government, as any which could have been suggested. So much may be conceded, and yet it remains true, as the record will show, that when it pa.s.sed this point and entered into factional strife, the Supreme Court somewhat lamentably failed, probably injuring itself and popular respect for law, far more by its errors, than it aided the Union by its political adjudications.

Although John Marshall, by common consent, ranks as one of the greatest and purest of Americans, yet even Marshall had human weaknesses, one of which was a really unreasonable antipathy to Thomas Jefferson; an antipathy which, I surmise, must, when Jefferson was inaugurated, have verged upon contempt. At least Marshall did what cautious men seldom do when they respect an adversary, he took the first opportunity to pick a quarrel with a man who had the advantage of him in position.

In the last days of his presidency John Adams appointed one William Marbury a justice of the peace for the District of Columbia. The Senate confirmed the appointment, and the President signed, and John Marshall, as Secretary of State, sealed Marbury's commission; but in the hurry of surrendering office the commission was not delivered, and Jefferson found it in the State Department when he took possession. Resenting violently these "midnight" appointments, as he called them, Jefferson directed Mr. Madison, his Secretary of State, to withhold the commission; and, at the next December term of the Supreme Court, Marbury moved for a rule to Madison to show cause why he should not be commanded to deliver to the plaintiff the property to which Marbury pretended to be ent.i.tled. Of course Jefferson declined to appear before Marshall, through his Secretary of State, and finally, in February, 1803, Marshall gave judgment, in what was, without any doubt, the most anomalous opinion he ever delivered, in that it violated all judicial conventions, for, apparently, no object, save to humiliate a political opponent.

Marshall had no intention of commanding Madison to surrender the commission to Marbury. He was too adroit a politician for that. Marshall knew that he could not compel Jefferson to obey such a writ against his will, and that in issuing the order he would only bring himself and his court into contempt. What he seems to have wished to do was to give Jefferson a lesson in deportment. Accordingly, instead of dismissing Marbury's suit upon any convenient pretext, as, according to legal etiquette, he should have done if he had made up his mind to decide against the plaintiff, and yet thought it inexpedient to explain his view of the law, he began his opinion with a long and extra-judicial homily, first on Marbury's t.i.tle to ownership in the commission, and then on civil liberty. Having affirmed that Marbury's right to his office vested when the President had signed, and the Secretary of State had sealed the instrument, he pointed out that withholding the property thus vested was a violation of civil rights which could be examined in a court of justice. Were it otherwise, the Chief Justice insisted, the government of the United States could not be termed a government of laws and not of men.

All this elaborate introduction was in the nature of a solemn lecture by the Chief Justice of the Supreme Court to the President of the United States upon his faulty discharge of his official duties. Having eased his mind on this head, Marshall went on, very dexterously indeed, but also very palpably, to elude the consequences of his temerity. He continued: The right of property being established, and the violation of that right clear, it is plain that a wrong has been committed, and it only remains to determine whether that wrong can be redressed under this form of procedure. We are of opinion that it cannot, because Congress has no const.i.tutional power to confer upon the Supreme Court original jurisdiction in this cla.s.s of litigation. In the lower courts alone can the relief prayed for be obtained.

Of all the events of Marshall's life this controversy with Jefferson seems to me the most equivocal, and it was a direct effect of a const.i.tutional system which has permitted the courts to become the censor of the political departments of the government. Marshall, probably, felt exasperated by Jefferson's virulence against these final appointments made by John Adams, while Marshall was Secretary of State, and for which he may have felt himself, in part, responsible. Possibly, even, he may have taken some of Jefferson's strictures as aimed at himself. At all events he went to extreme lengths in retaliation. He might have dismissed the litigation in a few words by stating that, whatever the abstract rights of the parties might have been, the Supreme Court had no power to constrain the President in his official functions; but he yielded to political animosity. Then, having taken a position practically untenable, he had to find an avenue of retreat, and he found it by a.s.serting a supervisory jurisdiction over Congress, a step which, even at that early period, was most hazardous.[12]

In reality Jefferson's temper, far from being vindictive and revolutionary, as his enemies believed, was rather gentle and timid, but he would have been more than mortal had he endured such an insult in silence. Nor could he, perhaps, have done so without risking the respect of his followers. So he decided on reprisals, and a scheme was matured among influential Virginians, like John Randolph and Senator William Giles, to purge the Supreme Court of Federalists. Among the a.s.sociate justices of this court was Samuel Chase, a signer of the Declaration of Independence and an able lawyer, but an arrogant and indiscreet partisan. Chase had made himself obnoxious on various public occasions and so was considered to be the best subject to impeach; but if they succeeded with him the Jeffersonians proclaimed their intention of removing all his brethren seriatim, including the chief offender of all, John Marshall. One day in December, 1804, Senator Giles, of Virginia, in a conversation which John Quincy Adams has reported in his diary, discussed the issue at large, and that conversation is most apposite now, since it shows how early the inevitable tendency was developed to make judges who partic.i.p.ate in political and social controversies responsible to the popular will. The conversation is too long to extract in full, but a few sentences will convey its purport:--

"He treated with the utmost contempt the idea of an _independent_ judiciary.... And if the judges of the Supreme Court should dare, _as they had done_, to declare an act of Congress unconst.i.tutional, or to send a mandamus to the Secretary of State, _as they had done_, it was the undoubted right of the: House of Representatives to impeach them, and of the Senate to remove them, for giving such opinions, however honest or sincere they may have been in entertaining them. * * * And a removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are suffered to carry them into effect you will work the destruction of the nation. _We want your offices_, for the purpose of giving them to men who will fill them better."[13]

Jefferson, though he controlled a majority in the Senate, failed by a narrow margin to obtain the two-thirds vote necessary to convict Chase.

Nevertheless, he accomplished his object. Chase never recovered his old a.s.surance, and Marshall never again committed a solecism in judicial manners. On his side, after the impeachment, Jefferson showed moderation. He might, if he had been malevolent, without doubt, have obtained an act of Congress increasing the membership of the Supreme Court enough to have put Marshall in a minority. Then by appointing men like Giles he could have compelled Marshall to resign. He did nothing of the kind. He spared the Supreme Court, which he might have overthrown, and contented himself with waiting until time should give him the opportunity to correct the political tendencies of a body of men whom he sincerely regarded as a menace to, what he considered, popular inst.i.tutions. Thus the ebullition caused by Marshall's acrimony toward Jefferson, because of Jefferson's strictures on the appointments made by his predecessor subsided, leaving no very serious immediate mischief behind, save the precedent of the nullification of an act of Congress by the Supreme Court. That precedent, however, was followed by Marshall's Democratic successor. And nothing can better ill.u.s.trate the inherent vice of the American const.i.tutional system than that it should have been possible, in 1853, to devise and afterward present to a tribunal, whose primary purpose was to administer the munic.i.p.al law, a set of facts for adjudication, on purpose to force it to pa.s.s upon the validity of such a statute as the Missouri Compromise, which had been enacted by Congress in 1820, as a sort of treaty of peace between the North and South, and whose object was the limitation of the spread of slavery. Whichever way the Court decided, it must have fallen into opprobrium with one-half the country. In fact, having been organized by the slaveholders to sustain slavery, it decided against the North, and therefore lost repute with the party destined to be victorious. I need not pause to criticise the animus of the Court, nor yet the quality of the law which the Chief Justice there laid down. It suffices that in the decade which preceded hostilities no event, in all probability, so exasperated pa.s.sions, and so shook the faith of the people of the northern states in the judiciary, as this decision. Faith, whether in the priest or the magistrate, is of slow growth, and if once impaired is seldom fully restored. I doubt whether the Supreme Court has ever recovered from the shock it then received, and, considered from this point of view, the careless att.i.tude of the American people toward General Grant's administration, when in 1871 it obtained the reversal of Hepburn _v_.

Griswold by appointments to the bench, a.s.sumes a sombre aspect.

Of late some sensitiveness has been shown in regard to this transaction, and a disposition has appeared to defend General Grant and his Attorney-General against the charge of manipulating the membership of the bench to suit their own views. At the outset, therefore, I wish to disclaim any intention of entering into this discussion. To me it is immaterial whether General Grant and Mr. h.o.a.r did or did not nominate judges with a view to obtaining a particular judgment. I am concerned not with what men thought, but with what they did, and with the effect of their acts at the moment, upon their fellow-citizens.

Hepburn _v_. Griswold was decided in conference on November 27, 1869, when eight justices were on the bench. On February 1, following, Justice Grier resigned, and, on February 7, judgment was entered, the court then being divided four to three, but Grier having been with the majority, the vote in reality stood five to three. Two vacancies therefore existed on February 7, one caused by the resignation of Grier, the other by an act of Congress which had enlarged the court by one member, and which had taken effect in the previous December.

Chief Justice Chase held that the clause of the currency laws of 1862 and 1863 which made depreciated paper a legal tender for preexisting debts was unconst.i.tutional. No sooner had the judgment been recorded than all the world perceived that, if both vacancies should be filled with men who would uphold the acts, Hepburn _v_. Griswold might be reversed by a majority of one.

The Republican party had full control of the government and was united in vehement support of the laws. On March 21, the second of the two new judges received his commission, and precisely ten days afterward the Attorney-General moved for a rehearing, taunting the Chief Justice with having changed his opinion on this point, and intimating that the issue was in reality political, and not judicial at all.

In the December Term following Knox _v_. Lee was argued by the Attorney-General, and, on May 1, 1871, judgment was entered reversing Hepburn _v_. Griswold, both the new judges voting with the former minority, thus creating the necessary majority of one. No one has ever doubted that what General Grant did coincided with the drift of opinion, and that the Republican party supported him without inquiring how he had achieved success.[14] After this it is difficult to suppose that much respect could remain among the American people for the sanct.i.ty of judicial political decisions, or that a President, at the head of a popular majority, would incur much odium for intervening to correct them, as a party measure.

The last example of judicial interference which I shall mention was the nullification, in 1895, of a statute of Congress which imposed an income tax. The states have since set this decision aside by const.i.tutional amendment, and I should suppose that few would now dispute that the Court when it so decided made a serious political and social error. As Mr. Justice White pointed out, the judges undertook to deprive the people, in their corporate capacity, of a power conceded to Congress "by universal consensus for one hundred years."[15] These words were used in the first argument, but on the rehearing the present Chief Justice waxed warm in remonstrating against the unfortunate position in which his brethren placed the Court before the nation, protesting with almost pa.s.sionate earnestness against the reversal by half-a-dozen judges of what had been the universally accepted legal, political, and economic policy of the country solely in order that "invested wealth" might be read "into the const.i.tution" as a favored and protected cla.s.s of property. Mr. Justice White closed by saying that by this act the Supreme Court had "deprived [the Government] of an inherent attribute of its being."[16] I might go on into endless detail, but I apprehend that these cases, which are the most important which have ever arisen on this issue, suffice for my purpose.[17] I contend that no court can, because of the nature of its being, effectively check a popular majority acting through a coordinate legislative a.s.sembly, and I submit that the precedents which I have cited prove this contention. The only result of an attempt and failure is to bring courts of justice into odium or contempt, and, in any event, to make them objects of attack by a dominant social force in order to use them as an instrument, much as Charles II used Jeffreys.

The moment we consider the situation philosophically we perceive why using a court to control a coordinate legislature must, nearly inevitably, be sooner or later fatal to the court, if it a.s.serts its prerogative. A court to be a fit tribunal to administer the munic.i.p.al law impartially, or even relatively impartially, must be a small body of men, holding by a permanent and secure tenure, guarded from all pressure which may unduly influence them. Also they should be men of much experience and learned in the precedents which should make the rules which they apply stable and consistent. In short, a court should be rigid and emotionless. It follows that it must be conservative, for its members should long have pa.s.sed that period of youth when the mind is sensitive to new impressions. Were it otherwise, law would cease to be cohesive. A legislature is nearly the ant.i.thesis of a court. It is designed to reflect the pa.s.sions of the voters, and the majority of voters are apt to be young. Hence in periods of change, when alone serious clashes between legislatures and courts are likely to occur, as the social equilibrium shifts the legislature almost certainly will reflect the rising, the court the sinking power. I take the Dred Scott Case as an ill.u.s.tration. In 1857 the slaveholding interest had pa.s.sed the zenith of high fortune, and was hastening toward its decline. In the elections of 1858 the Democratic party, which represented slavery, was defeated. But the Supreme Court had been organized by Democrats who had been dominant for many years, and it adhered, on the principle laid down by Jeffreys, to the master which created it.

Occasionally, it is true, a court has been constructed by a rising energy, as was the Supreme Court in 1789, but then it is equally tenacious to the instinct which created it. The history of the Supreme Court is, in this point of view, eminently suggestive. The Federalist instinct was constructive, not destructive, and accordingly Marshall's fame rests on a series of constructive decisions like M'Culloch _v_.

Maryland, Cohens _v_. Virginia, and Gibbons _v_. Odgen. In these decisions he either upheld actual national legislation, or else the power of the nation to legislate. Conversely, whenever Marshall or his successors have sought to obstruct social movement they have not prospered. Marbury _v_. Madison is not an episode on which any admirer of Marshall can linger with satisfaction. In theory it may be true, as Hamilton contended, that, given the fact that a written const.i.tution is inevitable, a bench of judges is the best tribunal to interpret its meaning, since the duty of the judge has ever been and is now to interpret the meaning of written instruments; but it does not follow from this premise that the judges who should exercise this office should be the judges who administer the munic.i.p.al law. In point of fact experience has proved that, so far as Congress is concerned, the results of judicial interference have been negative. And it would be well if in other spheres of American const.i.tutional development, judicial activity had been always negative. Unfortunately, as I believe, it has extended into the domain of legislation. I will take the Dred Scott Case once more to ill.u.s.trate my meaning. The North found it bad enough for the Supreme Court to hold that, under the Const.i.tution, Congress could not exclude slavery from the national territory beyond a certain boundary which had been fixed by compromise between the North and South. But the North would have found it intolerable if the Court, while fully conceding that Congress might so legislate, if the character of the legislation commended itself to the judges, had held the Missouri Compromise to be unconst.i.tutional because they thought it _unreasonable_. Yet this, in substance, is what our courts have done.

And this brings me to the consideration of American courts as legislative chambers.

FOOTNOTES:

[6] The relation of courts to legislation in European countries has been pretty fully considered by Brinton c.o.xe, in _Judicial Power and Const.i.tutional Legislation_.

[7] _Federalist_ No. LXXVIII.

[8] _The Federalist_, No. LXXVIII.

[9] _The Federalist_, No. LXXVIII.

[10] Cohens _v_. Virginia, 6 Wheaton 415.

[11] To Madison, Ford, 9, 275.

[12] Marshall's const.i.tutional doctrine was not universally accepted, even in the courts of the northern states, until long afterward. As eminent a jurist as Chief Justice Gibson of Pennsylvania, as late as 1825, gave a very able dissenting opinion in opposition in Eakin _v_.

Raub, 12 S.&R., 344.

[13] Memoirs, I, 322.

[14] Hepburn _v._ Griswold, 8 Wallace 603. Decided in conference on Nov.

27, 1869, more than a month before Grier's resignation. Knox _v_. Lee, 12 Wallace 457.

[15] 157 U.S. 608.

[16] Pollock _v_. The Farmers' Loan & Trust Co., 158 U.S. 715.

[17] In 1889 Mr. J.C. Bancroft Davis compiled a table of the acts of Congress which up to that time had been held to be unconst.i.tutional. It is to be found in the Appendix to volume 131 U.S. Reports, page CCx.x.xV.

Mr. Davis has, however, omitted from his list the Dred Scott Case, probably for the technical reason that, in 1857, when the cause was decided, the Missouri Compromise had been repealed. Nevertheless, though this is true, Tansy's decision hinged upon the invalidity of the law.

Besides the statutes which I have mentioned in the test, the two most important, I suppose, which have been annulled, have to me no little interest. These are the Civil Rights Act of 1875, and the Employers'

Liability Act of 1906. The Civil Rights Act of 1875 grew rapidly unpopular, and the decision which overturned it coincided with the strong drift of opinion. The Civil Rights Cases were decided in October, 1883, and Mr. Cleveland was elected President in 1884. Doubtless the law would have been repealed had the judiciary supported it. Therefore this adjudication stood.

On the other hand, the Employers' Liability Act of 1906 was held bad because Congress undertook to deal with commerce conducted wholly within the states, and therefore beyond the national jurisdiction. The Court, consequently, in the Employers' Liability Cases, simply defined the limits of sovereignty, as a Canadian Court might do; it did not question the existence of sovereignty itself. In 1908 Congress pa.s.sed a statute free from this objection, and the Court, in the Second Employers'

Liability Cases, 223 U.S. 1, sustained the legislation in the most thoroughgoing manner. I know not where to look for two better ill.u.s.trations of my theory.

CHAPTER III

AMERICAN COURTS AS LEGISLATIVE CHAMBERS

In one point of view many of the greatest of the Federalists were idealists. They seem sincerely to have believed that they could, by some form of written words, constrain a people to be honest against their will, and almost as soon as the new government went into operation they tested these beliefs by experiment, with very indifferent success. I take it that jurists like Jay and Marshall held it to be axiomatic that rules of conduct should be laid down by them which would be applicable to rich and poor, great and small, alike, and that courts could maintain such rules against all pressure. Possibly such principles may be enforced against individuals, but they cannot be enforced against communities, and it was here that the Federalist philosophy collapsed, as Hamilton, at least partly, foresaw that it must.

Sovereigns have always enjoyed immunity from suit by private persons, unless they have been pleased to a.s.sent thereto, not because it is less wrongful for a sovereign than for an individual to cheat, but because the sovereign cannot be arrested and the individual can. With the Declaration of Independence the thirteen colonies became sovereigns.

Petty sovereigns it is true, and singly contemptible in physical force as against most foreign nations, but none the less tenacious of the attributes of sovereignty, and especially of the attribute which enabled them to repudiate their debts. Jay, Marshall, and their like, thought that they could impose the same moral standard upon the states as upon private persons; they were unable to do so, but in making the attempt they involved the American judicial system in a maze of difficulties whose gravity, I fear, can hardly be exaggerated. Before entering upon this history, however, I must say a word touching the nature of our law.

Munic.i.p.al law, to be satisfactory, should be a body of abstract principles capable of being applied impartially to all relevant facts, just as Marshall and Jay held it to be. Where exceptions begin, equality before the law ends, as I have tried to show by the story of King David and Uriah, and therefore the great effort of civilization has been to remove judges from the possibility of being subjected to a temptation, or to a pressure, which may deflect them from impartiality as between suitors. In modern civilization, especially, nothing is so fatal to the principle of order as inequality in the dispensation of justice, and it would have been reasonable to suppose that Americans, beyond all others, would have been alive to this teaching of experience, and have studiously withdrawn their bench from politics. In fact they have ignored it, and instead they have set their judiciary at the focus of conflicting forces. The result has been the more unfortunate as the English system of jurisprudence is ill calculated to bear the strain, it being inflexible. In theory the English law moves logically from precedent to precedent, the judge originating nothing, only elaborating ideas which he has received from a predecessor, and which are binding on him. If the line of precedents leads to wrongful conclusions, the legislature must intervene with a statute rectifying the wrong. The Romans, who were gifted with a higher legal genius than we, managed better. The praetor, by his edict, suppressed inconvenient precedents, and hence the Romans maintained flexibility in their munic.i.p.al law without falling into confusion. We have nothing to correspond to the praetor.

Thus the English system of binding precedents is troublesome enough in a civilization in chronic and violent flux like modern civilization, even when applied to ordinary munic.i.p.al law which may be changed at will by legislation, but it brings society almost to a stand when applied to the most vital functions of government, with no means at hand to obtain a corrective. For the court of last resort having once declared the meaning of a clause of the Const.i.tution, that meaning remains fixed forever, unless the court either reverses itself, which is a disaster, or the Const.i.tution can be amended by the states, which is not only difficult, but which, even if it be possible, entails years of delay.