angrily against this claim, but it has been repeatedly re-asserted, 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 1806 it 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, was specially hostile to a construction of the Constitution which seemed to trench upon State rights,2 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, 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 dispute gave a 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.

4

the mandamus asked for, but upon the ground that the statute of Congress giving to the Supreme court original jurisdiction to issue a mandamus was inconsistent with the Constitution. See also Kendal v. United States, 12 Peters, 616; United States v. Schurz, 102 U.S. 378.

1 This however is a power which it has rarely been found necessary to exert. See Dr. Andrew's Manual of the Constitution, p. 196.

2 Martin Van Buren (President 1837-41) expressed the feelings of the bulk of his party when he complained bitterly of the encroachments of the Supreme court, and declared that it would never have been created had the people foreseen the powers it would acquire.

3 This was only one act in the long struggle of the Cherokee Indians against the oppressive conduct of Georgia-conduct which the court emphatically condemned, though it proved powerless to help the unhappy Cherokees.

The matter did not come to an absolute conflict, because before the time arrived for the court to direct the United States marshal of the district of Georgia to summon the posse comitatus and the President to render assistance in liberating the prisoners, the prisoners submitted to the State authorities, and were thereupon released. They probably believed that the imperious Jackson would persist in his hostility to the Supreme court.

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 re-establishing 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.1 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 desired 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,2 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

1 See as to these the article "Habeas Corpus" by Mr. Alex. Johnston in the American Cyclopædia of Political Science. And consider the very important decision in Ex parte Milligan, 4 Wall. 129.

2 Appointed, however, under an Act passed in April 1869.

by Congress, the court determined with only one dissentient voice that the power existed.1 This last decision excited some criticism, especially among the more conservative lawyers, because it seemed to remove restrictions hitherto supposed to exist on the authority of Congress, recognizing the right to establish a forced paper currency as an attribute of the sovereignty of the national government. But be the decision right or wrong, a point on which high authorities are still divided, the reversal by the highest court in the land of its own previous decision may have tended to unsettle men's reliance on the stability of the law; while the manner of the earlier reversal, following as it did on the creation of a new judgeship and the appointment of two justices, both known to be in favour of the view which the majority of the court had just disapproved, disclosed a weak point in the constitution of the tribunal which may some day prove fatal to its usefulness.

The other misfortune was the interposition of the court in the presidential electoral count dispute of 1877.3 Most people now admit that Mr. Tilden and not Mr. Hayes ought to have been declared elected in that year. But the five justices of the Supreme court who were included in the electoral commission then appointed voted on party lines no less steadily than did the senators and representatives who sat on it. A function scarcely judicial, and certainly not contemplated by the Constitution, was then for the first time thrown upon the judiciary, and in discharging it the judiciary acted exactly like non-judicial persons.

Notwithstanding this occurrence, which after all was quite exceptional, the credit and dignity of the Supreme court stand very high. No one of its members has ever been suspected of corruption, and comparatively few have allowed their political sympathies to disturb their official judgment. Though for many years back every President has appointed only men of his own party, and frequently leading politicians of his own party, the new-made judge has left partisanship behind him,

1 The earlier decision in favour of the power deduced it from war powers, the later from the general sovereignty of the national government. See Hepburn v. Griswold, 8 Wall. 603; Legal Tender Cases, 12 Wall. 457; Juilliard v. Greenman, 110 U.S. 421.

2 See the pamphlets of Mr. George Bancroft and Mr. R. C. MacMurtrie, an article in the Amer. Law Review, iv. 768, by Mr. (Justice) O. W. Holmes, and an article in the Harvard Law Review for May 1887, by Mr. James B. Thayer, of the Harvard Law School. 3 See above, p. 44.

I have heard American lawyers express surprise as well as admiration at the

while no doubt usually retaining that bias or tendency of his mind which party training produces. In 1885 all the judges but three belonged to the Republican party, but although the Democrats, then coming into power, regretted this, and welcomed the prospect of putting in their own men as vacancies might occur, the circumstance did not affect their respect for the court and their faith in its uprightness. The desire for an equal representation of both parties is based, not on any fear that suitors will suffer from the influence of party spirit, but on the feeling that when any new constitutional question arises it is right that the tendencies which have characterized the Democratic view of the Constitution should be duly represented over against those supposed to influence the Republicans.

Apart from these constitutional questions, the value of the Federal courts to the country at large has been inestimable. They have done much to meet the evils which an elective and ill-paid State judiciary inflicts on some of the newer and a few even of the older States. The Federal Circuit and District judges, small as are their salaries, are in most States individually superior men to the State judges, because the greater security of tenure induces abler mer. to accept the post. Being irremovable, they feel themselves independent of parties and politicians, whom the elected State judge, holding for a limited term, may be tempted to conciliate with a view to re-election. Plaintiffs, therefore, when they have a choice of suing in a State court or a Federal court, frequently prefer the latter; and the litigant who belongs to a foreign country, or to a different State from that in which his opponent resides, may think his prospects of an unbiassed decision better before it than before a State tribunal.

Federal judgeships of the second and third rank (Circuit and District) are invariably given to the members of the President's party, and by an equally well-established usage, to persons resident in the State or States where the circuit or district court is held. But cases of corruption, or even of pronounced partisanship, are practically unknown. The chief present defect is the inadequacy of the salaries of the District judges, and the inoccasional departures in England (as notably in the recent case of Lord Justice Holker, who, having been Attorney-General of one party, was, in respect of his eminent merits, appointed Lord Justice of Appeal by the other) from the practice of political appointments to judicial office. Such non-political appointments are however occasionally made in the several States by the governors, or even (as in the case of Chief-Justice Redfield of Vermont) by the legislature.

sufficiency of the staff in the more populous commercial States to grapple with the vast and increasing business which flows in upon them. Soo too, in the Supreme court, arrears have so accumulated that it is now more than three years from the time when a cause is entered before it can come on for hearing. Some have proposed to meet this evil by limiting the right of appeal to cases involving a considerable sum of money; but a better remedy might be to divide the Supreme court into two divisional courts for the hearing of ordinary suits, reserving for the full court points affecting the construction of the Constitution.

One question remains to be put and answered.

The Supreme court is the living voice of the Constitution-1 that is, of the will of the people expressed in the fundamental law they have enacted. It is, therefore, as some one has said, the conscience of the people, who have resolved to restrain themselves from hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the minority, who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction.

To discharge these momentous functions, the court must be stable even as the Constitution is stable. Its spirit and tone must be that of the people at their best moments. It must resist transitory impulses, and resist them the more firmly the more vehement they are. Entrenched behind impregnable ramparts, it must be able to defy at once the open attacks of the other departments of the government, and the more dangerous, because impalpable, seductions of popular sentiment.

Does it possess, has it displayed, this strength and stability? It has not always followed its own former decisions. This is natural in a court whose errors cannot be cured by the intervention of the legislature. The English final Court of Appeal always follows its previous decisions, though high authorities have declared that cases may be imagined in which it would refuse to And that court (the House of Lords) can afford so to

do so.

1 The Romans called their chief judicial officer "the living voice of the civil law"; but as this "civil law" consisted largely of custom, he naturally enjoyed a wider discretion in moulding and expanding as well as in expounding the law than do the American judges, who have a formally enacted constitution to guide and restrain them.