have received that national interpretation which distinguish Marshall's decisions. We may anticipate events and say that the most remarkable fact pertaining to Marshall's decisions and the administration of the general government by the Democratic party from John Adams to Lincoln, was the survival of the interpretation of principles laid down by the Court in Marshall's time, and the abandonment at last by the American people of many of the distinctive doctrines which the Democratic party long held.

The closing years of Marshall's life were made anxious by changes in the personnel of the Court which seemed to threaten the overthrow of these principles. The long continued triumph of the Democratic party, which began with the election of Jefferson in 1800, culminated toward the close of Marshall's life in the election of Jackson, and the transformation of the Court, by new appointments, into a body of strict constructionists. Marshall's associates, during the greater part of his long term, held political opinions more or less broad and liberal like his own. But as, one by one, his early associates passed away, Democratic Presidents appointed men who held opinions quite the opposite of his own, so that by 1830, the Court had become re-organized and Marshall stood almost alone. The appointment of his successor, Roger B. Taney, in 1835, by President Jackson, completed the change, and for twenty-eight years the Court was in many respects Democratic in its decisions, as under Marshall it had been Federalist. But during this time fewer cases of the rank of those which Marshall had decided, reached the Court. The most famous was the Dred Scott case, and that, in its pro-slavery conclusions, was speedily reversed by the events of the Civil War. Prior to Marshall's appointment, the Court had been in existence eleven years

and had handed down decisions in six cases involving the construction of the Constitution. Of these the most important was the Chisholm case, in 1794, of which an account has already been given, and the decision in which, as we have seen, was soon overruled by the adoption of the Eleventh Amendment.1

The interpretation which the authors of the Federalist put upon the principles of the Constitution was made before it had been tried as a working scheme of government. The law of the Constitution laid down by Hamilton, Madison and Jay anticipated the conclusions of courts and the platforms of political parties. We were the first people to begin national life with a written Constitution and its interpretation was bound to conform, from the nature of the case, to those conditions which had contributed to make it one of the great, controlling facts in national life. Though complete within itself, the Constitution did not, because it could not, display the whole civil structure of the Nation, for many particular features were presented only by the State constitutions.2 As the supreme law of the land it was intended to regulate the rights and to protect the interests of States and of individuals, impartially. This comprehensive and integral character was due to its origin in the will of the sovereign people by which they declared the form of government under which they chose to live and the powers and limitations which they imposed upon their agents in its

1 See Chap. II. For a later exposition of the principles in Chisholm vs. Georgia, see Hans vs. Louisiana, 134 United States, 1, (1889.)

2 The Federal Supreme Court, Its Place in American Constitutional System, by Thomas Cooley, LL.D. in A Constitutional History of the United States as Seen in the Development of American Law. A course of lectures before the Political Science Association of the University of Michigan, by Judge Cooley and others: G. P. Putnam's Sons, 1890, p. 31.

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THE NATIONAL SYSTEM.

administration. They raised it of their own will as the standard of their system of political ethics.

1

The national political system, as embodied in the Constitution, was, in part, a creation, and chiefly as it was a composite piece of work: but when we give due consideration to its derivative features, we must in justice conclude that while it remains a distinctively American work, its nativity lies in its principal sources, the earlier State constitutions and the practices and customs of the American people. Its original character consisted largely in the selection which its framers made and in the application of that which they selected. The Federal Convention of 1787 acted as a Grand Committee of the Nation and referred its work for approval to the sovereign body which it represented, the people acting as State communities. By them it was ratified and given the seal of sovereignty.

The character of the Constitution will be clearly grasped if it be conceived, as it was originally intended to be,-as a plan, or form of government. It was not self executing. "The powers of government are to be exercised not by the sovereign authority, but by officers and departments created as agents for the purpose, and clothed for the time being with certain delegated functions. The legislature is itself one of these agents, with powers limited in the delegation, so that in the nature of things it is impossible that it should assert and take to itself the complete legislative power, expressed in the term 'legislative omnipotence,' which is claimed and exercised by Parliament of the British Empire." The purpose, conscious or unconscious,

1 See Vol. III, Book VI, Ch. VI.

2 Justice Cooley, The Federal Supreme Court, in Political Science Lectures, 1889, University of Michigan, 33.

UNIQUE POSITION OF AMERICA.

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which the founders of our government had when they framed the Constitution was primarily to secure practical certainty in the theory and administration of the public business. They conceived of the State as having definite form and a definite purpose, and of the administration of government as conducted by definite procedure. This explains primarily the importance which the American people attached to the Constitution, whether the administration of the government was in the hands of Federalists, Democrats or Whigs. The ideals of a party, and the fruit and consequences of its elevation to power were judged, at least by the people, by the standard of the supreme written law.

A moment's reflection will show that this was a unique political position for any people. Not the least important consequence was the growth of political ideals, toward the realization of which every party asserted that it was moving. The position gave to the people the means of independent judgment, for not only did they pass judgment on the principles of a party and the results of its administration of the government as things to be approved or disapproved in themselves, but, of greater consequence, they judged party principles and administration as measured by the ideals of a national political system embodied in the Constitution. Thus it followed all through these turbulent years, from the close of the Revolution to the adoption of the Compromise of 1850, that every party was in turn subjected by the people to the same general tests, partly practical but largely ideal and abstract. Yet it must be admitted that the principles of the American system were more or less familiar to the people, as was shown repeatedly by their devotion to the law of rotation in office by which the administration of public business was, in the course of these seventy-five years, committed

462

JUDICIAL FUNCTIONS.

to a succession of new men and the public business was not wholly mismanaged. The inquiry, then, is a natural one, What was the law of the Constitution as interpreted by the American people during these years? Whence did it originate? We have seen that the powers of Congress and of the President were diversely interpreted by these departments of government and still more diversely by political parties. But the fundamentals of the American political system were interpreted by another power also, the Judiciary, the most unique factor in our national life.

The courts of law, State and Federal, hold a place in our system unparalleled in the political system of other countries. The functions which the courts perform are partly an inheritance, but largely the creation of the founders of our government. When the Constitution was framed, the original features of the judicial powers comprised the great departure from older political systems. The judicial power of the United States was not established merely to create a tribunal which should pronounce in the last resort the constitutionality or the unconstitutionality of an act of Congress. That power was established to determine all cases in law and equity arising under the Constitution and also the laws of the United States and treaties made under its authority. While the Constitution was before the States for ratification, one unfailing source of opposition was to the dangerous power which the exercise of the functions of the Federal judiciary would give to the United States, making it a consolidated. government. It was feared that the States would be swallowed up and their political identity wholly lost. The Anti-Federalists and their political heirs, the Democratic-Republicans and Democrats, viewed the Federal judiciary with distrust. We have seen how as soon as