The American Commonwealth. Viscount James Bryce

favour, because he is at the top of the tree and can climb no higher. Virtue has all the external conditions in her favour. It is true that virtue is compatible with a certain bias of the mind, and compatible also with the desire to extend the power and jurisdiction of the court. But even allowing that this motive may occasionally sway the judicial mind, the circumstances which surround the action of a tribunal debarred from initiative, capable of dealing only with concrete cases that come before it at irregular itervals, unable to appropriate any of the sweets of power other than power itself, make a course of systematic usurpation more difficult and less seductive than it would be to a legislative assembly or an executive council. As the respect of the bench for the bar tends to keep the judges in the straight path, so the respect and regard of the bar for the bench, a regard grounded on the sense of professional brotherhood, ensure the moral influence of the court in the country. The bar has usually been very powerful in America, not only as being the only class of educated men who are at once men of affairs and skilled speakers, but also because there has been no nobility or territorial aristocracy to overshadow it.⁷ Politics have been largely in its hands, and must remain so as long as political questions continue to be involved with the interpretation of constitutions. For the first sixty or seventy years of the Republic the leading statesmen were lawyers, and the lawyers as a whole moulded and led the public opinion of the country. Now to the better class of American lawyers law was a sacred science, and the highest court which dispensed it a sort of Mecca, towards which the faces of the faithful turned. Hence every constitutional case before the Supreme Court was closely watched, the reasonings of the Court studied, and its decisions appreciated as law apart from their bearing on political doctrines. I have heard elderly men describe the interest with which, in their youth, a famous advocate who had gone to Washington to argue a case before the Supreme Court was welcomed by the bar of his own city on his return, how the rising men crowded round him to hear what he had to tell of the combat in that arena where the best intellects of the nation strove, how the respect which he never failed to express for the ability and impartiality of the Court communicated itself to them, how admiration bred acquiescence, and the whole profession accepted expositions of the law unexpected by many, perhaps unwelcome to most. When it was felt that the judges had honestly sought to expound the Constitution, and when the cogency of their reasoning was admitted, resentment, if any there had been, passed away, and the support which the bar gave to the Court ensured the obedience of the people.

      That this factor in the maintenance of judicial influence proved so potent was largely due to the personal eminence of the judges. One must not call that a result of fortune which was the result of the wisdom of successive presidents in choosing capable men to sit on the supreme federal bench. Yet one man was so singularly fitted for the office of chief justice, and rendered such incomparable services in it, that the Americans have been wont to regard him as a special gift of favouring Providence. This was John Marshall, who presided over the Supreme Court from 1801 till his death in 1835 at the age of seventy-seven, and whose fame overtops that of all other American judges more than Papinian overtops the jurists of Rome or Lord Mansfield the jurists of England. No other man did half so much either to develop the Constitution by expounding it, or to secure for the judiciary its rightful place in the government as the living voice of the Constitution. No one vindicated more strenuously the duty of the Court to establish the authority of the fundamental law of the land, no one abstained more scrupulously from trespassing on the field of executive administration or political controversy. The admiration and respect which he and his colleagues won for the Court remain its bulwark. The traditions which were formed under him and them have continued in general to guide the action and elevate the sentiments of their successors.

      Nevertheless, the Court has not always had smooth seas to navigate. It has more than once been shaken by blasts of unpopularity. It has not infrequently found itself in conflict with other authorities.

      The first attacks arose out of its decision that it had jurisdiction to entertain suits by private persons against a state.⁸ This point was set at rest by the Eleventh Amendment; but the states then first learnt to fear the Supreme Court as an antagonist. In 1801, in an application requiring the secretary of state to deliver a commission, it declared itself to have the power to compel an executive officer to fulfill a ministerial duty affecting the rights of individuals.⁹ President Jefferson protested angrily against this claim, but it has been repeatedly reasserted, and is now undoubted law. It was in this same case that the Court first explicitly asserted its duty to treat as invalid an act of Congress inconsistent with the Constitution. In 1805 its independence was threatened by the impeachment of Justice Chase, the aim of the Republican (Democratic) party then dominant in Congress being to set a precedent for ejecting, by means of impeachment, judges (and especially Chief Justice Marshall), whose attitude on constitutional questions they condemned. The acquittal of Chase dispelled this danger; nor could John Randolph, who then led the House, secure the acceptance of an amendment to the Constitution which he thereupon proposed for enabling the president to remove federal judges on an address of both houses of Congress. In 1806 the Court for the first time pronounced a state statute void; in 1816 and 1821 it rendered decisions establishing its authority as a supreme court of appeal from state courts on “federal questions,” and unfolding the full meaning of the doctrine that the Constitution and acts of Congress duly made in pursuance of the Constitution are the fundamental and supreme law of the land. This was a doctrine which had not been adequately apprehended even by lawyers, and its development, legitimate as we now deem it, roused opposition. The Democratic party which came into power under President Jackson in 1829, were specially hostile to a construction of the Constitution which seemed to trench upon states’ rights,¹⁰ and when in 1832 the Supreme Court ordered the state of Georgia to release persons imprisoned under a Georgian statute which the court declared to be invalid,¹¹ Jackson, whose duty it was to enforce the decision by the executive arm, remarked, “John Marshall has pronounced his judgment: let him enforce it if he can.” The successful resistance of Georgia in the Cherokee dispute¹² gave a temporary, though only a temporary, blow to the authority of the Court, and marked the beginning of a new period in its history, during which, in the hands of judges mostly appointed by the Democratic party, it made no further advance in power.

      In 1857 the Dred Scott judgment, pronounced by a majority of the judges, excited the strongest outbreak of displeasure yet witnessed. The Republican party, then rising into strength, denounced this decision in the resolutions of the convention which nominated Abraham Lincoln in 1860, and its doctrine as to citizenship was expressly negatived in the fourteenth constitutional amendment adopted after the War of Secession.

      It was feared that the political leanings of the judges who formed the court at the outbreak of the war would induce them to throw legal difficulties in the prosecution of the measures needed for reestablishing the authority of the Union. These fears proved ungrounded, although some contests arose as to the right of officers in the Federal army to disregard writs of habeas corpus issued by the Court.¹³ In 1868, having then become Republican in its sympathies by the appointment of new members as the older judges disappeared, it tended to sustain the congressional plan of reconstruction which President Johnson was endeavouring to defeat, and in subsequent cases it has given effect to most, though not to all, of the statutes passed by Congress under the three amendments which abolished slavery and secured the rights of the Negroes. In 1866 it refused to entertain proceedings instituted for the purpose of forbidding the president to execute the Reconstruction Acts.

      Two of its later acts are thought by some to have affected public confidence. One of these was the reversal, first in 1871, and again, upon broader but not inconsistent grounds, in 1884, of the decision, given in 1870, which declared invalid the act of Congress making government paper a legal tender for debts. The original decision of 1870 was rendered by a majority of five to three. The Court was afterwards changed by the creation of an additional judgeship,¹⁴ and by the appointment of a new member to fill a vacancy which occurred after the settlement, though before the delivery of the first decision. Then the question was brought up again in a new case between different parties, and decided in the opposite sense (i.e., in favour of the power of Congress to pass legal tender acts) by a majority of five to four. Finally, in 1884, another suit having brought up a point practically the same though under a later statute passed by Congress, the court determined with only one dissentient voice that the power existed.¹⁵