The Consolidation of the Colonies

In a former article I tried to prove that the American system of government was no accidental birth, nor was it the invention of the statesmen and lawyers of the revolution. On the contrary, I attempted to show that the institutions of the Union are the result of a growth as slow and regular as that which has matured those of any other modern nation.

Our constitutional principles originated in the legal conception of the mediæval charter whose object was the adjustment of the relations of the sovereign and the subject. The theory which was slowly evolved was that an impartial judiciary should arbitrate between the two: for on the one hand the subject was protected, since the king could not revoke his grant without obtaining a judgment from the courts; while on the other the company or guild was kept from usurpation by the power of the judges to annul such corporate acts as transcended the limits of the grant, or even to cancel the charter itself when its privileges had been abused.

Nor even after the trading company had grown into the colony was there any difficulty in reducing this theory to practice. Citizens aggrieved by the action of either the colonial legislature or the crown could seek redress before the Privy Council, whose decrees, backed by the forces of England, were not to be gainsaid. But the British Parliament was absolute: against its power no charter could avail, no court could intervene. The only remedy for oppression was war, and the Revolution was fought to settle a quarrel between Parliament and America, not between the colonists and the crown.

Independence altered these relations. The people, it is true, provided written constitutions in place of the old charters, but the courts who were to enforce their meaning were no longer the great tribunals of England; they were only the judiciary of the States, bodies weaker than the legislatures whose action they were to control. The adoption of the federal Constitution wrought a further change. A national judiciary was established to entertain appeals from the state courts on questions of federal law, and likewise to uphold against the national Executive and legislature those limitations on their power which the people had solemnly enacted for their own protection.

Thus there are two distinct phases of American constitutional history: the one, the great struggle wherein the Union enforced the organic law upon the States; the other, the attempt of the Supreme Court to bridle Congress. The weak spot in the system is obvious at a glance: the judiciary has no inherent power. Unsupported, it can hardly coerce an individual, much less Massachusetts or Virginia; before Congress its impotence is complete. From the outset it has had to rely upon the Executive to execute its decrees; its danger has lain in provoking a quarrel in which the President and Congress should unite to strike it down.

Here there is hardly space even for a glance at that long, fierce conflict which began in the agitation for the adoption of the Constitution and ended with Lee’s surrender. Throughout the court has represented the national principle, and its defeat would have rent the Union asunder. It has met revolt in all sections of the country, for all have resisted when galled by the federal rule. It has conquered, for it has spoken the will of the consolidating nation, and the States have in turn been forced to bow before that massive power.

In 1798 Virginia and Kentucky, in resisting the alien and sedition laws, passed their celebrated resolutions which contain the whole doctrine of nullification and secession. The Virginians declared that when Congress exercised powers not granted in the Constitution the States might interpose to maintain their rights and liberties within their borders; or, in other words, nullify a federal statute. There lay the whole contention in a nutshell: was the nation, through its highest court, to decide without appeal upon the lawfulness of its own legislation, or were the States to be at liberty to repudiate what was obnoxious to them? The minority were constantly inclining toward rebellion. Massachusetts, when pressed by the embargo and the war of 1812, was no whit behind Virginia. The Federalists were thoroughly disaffected, and the length to which their passions drove their judges is shown by the solemn opinion in which Chief Justice Parsons held that in time of war the right to determine whether the exigency exists which, under the Constitution, authorizes the President to call out the militia was not in him, but in the governor; so that, according to the Massachusetts doctrine, States in which war is unpopular need send no troops to defend the Union.

Through seventy years the Supreme Court repudiated these doctrines, and steadfastly maintained the principle that it alone was the final expounder of the Constitution and the judge of the validity of acts of Congress. The controversy was long, but the victory has been decisive, and won at last upon the battlefield. To us it seems clear that so irrepressible a conflict must have ended sooner or later in an appeal to force, and that the path to consolidation led through war; but in war or peace the judiciary has triumphed, because it has been upheld by the power of the people. Whether it has been John Adams confronted by Virginia, or Jefferson and Madison thwarted by Massachusetts, or Jackson defied by South Carolina, or Lincoln battling with the South, at critical moments the President has always been foremost in maintaining the laws of the land. Supported thus, the arm of the court is long and its hand is heavy, but its impotence when alone was only too clearly shown in its humiliation by Georgia.

The Cherokee Indians had been long settled upon certain tracts of land within that State, over which they exercised sovereign control, and in which they were protected by treaties with the Union. About the year 1819 the situation began to attract attention. The government was bound by agreement to obtain these lands from the Indians for the State as soon as possible, but the difficulty was that the tribe refused to sell or part with them on any terms, and Georgia, not unnaturally objected to having this independent community established permanently within her borders. At length, in 1852, matters came to a crisis: the State decided to use force, and the legislature passed an act extending her jurisdiction over the Indian country, and dividing it among the adjoining counties. In 1830 it was made criminal for any white man to reside within the Indian district without a permit from the governor. A Presbyterian missionary named Worcester, a citizen of Vermont, was arrested for violating this statute, was tried, convicted, and sentenced to hard labor for four years. The case was taken to Washington on writ of error. It was argued before the full bench, and the chief justice, speaking for his associates, held the act under which Worcester was indicted void, as contrary to the Constitution and the treaties of the Union. His sentence was reversed. Neither Governor Lumpkin nor the Superior Court of Georgia paid any attention to this decree. Worcester was imprisoned for a year, and then released for political reasons. No satisfaction was ever given to the highest tribunal of the nation for this insult, nor was any attempt at apology made. Jackson sympathized with Georgia, and there was much point in his savage sneer: “John Marshall has made his decision; now let him enforce it.”

But if the bench, when alone, is thus powerless to coerce a State, its position toward a hostile Congress is far more difficult: to enforce obedience is impossible; to invite attack is fatal. Twice it has been assailed: once it escaped through the errors of its adversary; the second time it fell almost without a struggle.

The convention did its best to fortify the judiciary, yet its position must always be vulnerable. The judges, it is true, hold their places during good behavior, and can be removed only by impeachment for high crimes and misdemeanors; nor can their pay be diminished without their consent. On the other hand, Congress can enlarge the numbers of the court to any extent, and, as the President appoints, a majority of any shade of opinion can be secured. Undoubtedly, to succeed, the Executive and the legislature must unite, but the President is usually in harmony with the predominant party. Thus there are two ways in which a refractory bench may be controlled: its members may be proceeded against directly by impeachment, and, if convicted by the Senate, may be removed; or new judges may be added until harmony is secured. Each course has been tried, — impeachment first.

When Jefferson was elected in 1800 the Democrats honestly believed that their success meant the opening of a new era to mankind. They were penetrated with the truth of those ideas which moved the world so deeply a century ago, though we know now that their theories were mostly unsubstantial daydreams. The fist practical article of their creed was the simplification of the national government, the reduction of its functions to the lowest point, and a construction of the Constitution so strict as to exclude all powers not expressly as to exclude all powers not expressly granted by the people to their new sovereign. But how was it possible to carry out these principles when a bench of bitter Federalists was declaring, day after day, the exact reverse to be the law? Moreover, the judges were hostile to the administration, and lost few opportunities of annoyance. The famous case of Marbury v. Madison is a good example. Chief Justice Marshall took the occasion to read Mr. Jefferson a lecture on his duties through fifteen pages of his opinion, while for legal purposes all he had to say is contained in the last five and a half. So, likewise, in the trial of Burr, he ruled that the President could be summoned to testify, like any other witness. Apart from every consideration of propriety, the decision was a mistake, for who was there to bring the President to court should he decline to go? The only men to arrest him were his own officers, whom he could instantly remove.

Aside, however, from such practical difficulties, there are obvious reasons why the President must be shown a consideration beyond other men. Some of these are wittily pointed out by Mr. Jefferson in a letter to George Hay: —

“The leading principle of our Constitution is the independence of the legislative, Executive, and judiciary of each other, and none are more jealous of this than the judiciary. But would the Executive be independent of the judiciary if he were subject to the commands of the latter, and to imprisonment for disobedience; if the several courts could bandy him from pillar to post, keep him constantly trudging from north to south and east to west, and withdraw him entirely from his constitutional duties?”

John Marshall was not a man to forget his dignity; unfortunately, there were others with less self-control. The behavior of Justice Chase was an outrage on decency. In May, 1803, in charging the grand jury at Baltimore, he took occasion to make a violent political speech, bitterly attacking the administration and the Democratic party. No self-respecting government could patiently endure such an outrage from one of its own judicial officers; the difficulty was to know what to do. By an impeachment, as technically understood by lawyers, it might perhaps have been possible to reach Chase; but that would not have satisfied the Democrats, who wanted to impose their principles on the court, not to punish one obnoxious man. Accordingly, they began by repudiating the theory that the English precedents were in point, or that the Senate sat as a court at all, or was bound by rules of evidence; but their views can be best explained by an extract from the diary of J. Q. Adams, in which a conversation is reported of one of their own leaders, Senator Giles, of Virginia: —

“Giles labored with excessive earnestness to convince Smith of certain principles, upon which not only Mr. Chase, but all the other judges of the Supreme Court, excepting the one last appointed, must be impeached and removed. He treated with the utmost contempt the idea of an independent judiciary; said there was not a word about such independence in the Constitution, and that their pretensions to it were nothing more nor less than an attempt to establish an aristocratic despotism in themselves. The power of impeachment was given without limitation to the Senate; and if the judges of the Supreme Court should dare, as they had done, to declare an act of Congress unconstitutional, 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. Impeachment was not a criminal prosecution; it was no prosecution at all. The Senate sitting for the trial of impeachments was not a court, and ought to discard and reject all process of analogy to a court of justice. A trial and removal of a judge upon impeachment need not imply any criminality or corruption in him. Congress had no power over the person, but only over the office. And a removal by impeachment was nothing more than a declaration by Congress to this effect: You hold dangerous opinions, and if you are allowed 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.”

Had the impeachment been ably handled it is not impossible that these views might have prevailed; but John Randolph, who conducted the prosecution, not only was no lawyer, but his mind was incapable of grappling with legal subjects. If, steadily refusing to deal with precedents at all, or go into evidence, he had sought a conviction on the ground of unbecoming conduct on the bench, as though he had been asking for a removal by address, he might have prevailed. He did the opposite. He drew up a number of articles involving questions of a technical nature; in trying to prove them he had to submit to the rules of evidence and the paraphernalia of a trial, and from that moment he was lost. Not only was he crushed by the counsel for the defense, but he hopelessly broke down in attempting to make his indictment hold water. Short of treason or bribery, a technical high crime or misdemeanor is hard to prove, — so hard, indeed, that not only was Chase acquitted, but from then till now the House of Representatives has never secured a single conviction, and it seems improbable that it ever will. Thus in its first conflict with Congress the judiciary came off victorious through Randolph’s blunders; in its second it had to deal with abler men, and it met a different fate. For more than seventy years, however, the relations of the court with the legislature were on the whole tolerably harmonious. During the slavery agitation the judges were Democratic, and whatever may be thought of the wisdom or justice of their political decisions they did not lack support. With secession the tide turned; but the court turned also, and in the test case of the Amy Warwick, in 1862, it sustained the blockade and the war powers of the government. In 1865 the Republicans had no need of judicial help; they were strong enough to change the Constitution as they chose, and accordingly, in the absolute fashion of conquerors, they dictated amendments that closed the controversy which had led to the Dred Scott decision and the civil war. They could neglect the quibbles of lawyers; it is the right of the victor. But the moment of rupture was at hand. In 1862 and 1863, while Mr. Chase was Secretary of the Treasury, the legal-tender acts were passed. In 1864 Mr. Lincoln made his chief justice, and his position became most difficult when, four years later, he had to decide upon the constitutionality of these very laws for which he was so largely responsible. The case of Hepburn v. Griswold, argued in 1868, presented the question whether Congress could make paper a legal tender for debts which, when contracted, were payable in coin. All admitted that no grant of such a power was to be found in the Constitution, and if held to exist, it must be supplied by judicial construction. After repeated arguments, much hesitation, and long delay, a majority of the judges were forced to the conclusion that statutes making paper promises a legal tender for debts which, when incurred, were only payable in gold or silver coin were void.

The decision was unpopular. It was a time of inflation and great apparent prosperity, and men feared a contraction of the currency would lead to a crisis. The Republicans strongly favored the legal tenders, and the administration determined that Hepburn v. Griswold should be overruled. At that very moment a tempting opportunity offered itself. A statute of 1866, reducing the court, had fixed the number of associate justices at six, making seven members in all. In point of fact, however, the reduction was never made; for when there were still eight judges on the bench Congress, by act of April 1869, enlarged the number to nine, the law to take effect from the first Monday of the following December. A few days before that date, or, to be exact, on November 27th, Hepburn v. Griswold was decided in conference by a vote of five out of the eight justices. Between the 27th and February 1st the opinion of the majority was agreed to in conference, and would have been delivered had not the minority asked for another week in which to prepare theirs. On February 1st Mr. Justice Grier resigned, and as judgment was not entered until the 7th the court was divided thus: four judges made the majority, three the minority, and there were two vacancies, — one caused by Grier’s resignation, the other being the new seat made by the statute, not yet filled. It was possible, therefore, by making judicious appointments, to reverse the vote, and form a majority of five out of the former minority of three. This was promptly done. Justice Strong, whose opinion was on record, and who was therefore known to be sound, was appointed on February 18th, and Mr. Bradley the next month. Then no time was lost; ten days after the court had been adjusted Hon. E. R. Hoar moved for a rehearing, which was then refused, but other cases involving the legal-tender issue were set down for argument, and the result was a foregone conclusion. In May, 1871, judgment was entered in Knox v. Lee, reversing Hepburn v. Griswold; the case being decided by a vote of five to four in a court of nine, the majority consisting of the former minority and the two new judges. Last summer the conclusions reached in Knox v. Lee were reaffirmed and emphasized. It matters little, for the court has fallen, and it is not probable it can ever again act as an effective check upon the popular will; or, should it attempt to do so, that it can prevail.

The historical conclusion is obvious. The state constitutions were regularly developed from the ancient charters, which defined the relations of the sovereign to the subject. These suggested and served as models for the federal Constitution, when, after the Revolution, the scattered colonies were falling into chaos under the confederation. At that time some mould was needed in which to cast the new republic, for established precedent and ancient usage were wholly wanting. This need was supplied by a written scheme of government.

A hundred years have gone: the work is done; the nation has outgrown the shell that protected it in infancy. Modern America is ruled, like England, by means of a mass of custom and tradition which silently shapes itself to the changing wants of the people. It would be impossible, even were it desirable, to bind the country by unfaltering laws a century old. It is of little moment whether the meaning of our great charter is slowly construed away by the ingenuity of lawyers, or whether it is roughly thrust aside by force: its fate is sealed; it must yield where it obstructs. As the world moves on, the venerable institutions of the past are left behind, as our ancestors left behind them the mediæval trading company and guild. Men may theorize forever about abstract right and justice, — this much alone is certain: in our country and in our age that which the majority of the people want will be the law, and the President and Congress, who represent the people, will see that the work is done. Our destiny will be accomplished, and the men or the tribunal that would bar the way must fall like the Supreme Court.