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478

JACKSON ON MARSHALL'S OPINION.

the period from the Revolution to the Compromise of 1850, it received formidable support. A government constructed on any other principle than that which he laid down, he believed, would be in perpetual danger of standing still. For the right to decide on the constitutionality of laws would not be peculiar to the judiciary but would reside equally in the person of every officer whose agency might be necessary to carry them into execution. The substance of the doctrine which he laid down was expressed in his statement that with the people only rested full and absolute power "to correct abuse in legislation by instructing their representatives to repeal the obnoxious Any other method would be an infringement of popular rights.

act."

The political analogue to this opinion was expressed by Jackson seven years later in his message vetoing the act to continue the Bank of the United States.1 Referring to Marshall's decision on the constitutionality of the orig inal act incorporating the bank,2 Jackson went the whole length of Gibson's dissenting opinion: "If the opinion of the Supreme Court," said the President, "covered the whole ground of this act, it ought not to control the coordinate authorities of this government. The Congress, the Executive and the court must each for itself be guided by its own opinion of the Constitution. Each public officer, who takes an oath to support the Constitution, swears that he will support it as he understands it and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval, as it is of the Supreme Judges when 1 July 10, 1832, Richardson II, 582.

2 Statutes at Large, III, 266; April 10, 1816.

BEGINNING OF POPULISM.

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it may be brought before them for judicial decision. The opinion of the Judges has no more authority over Congress than the opinion of Congress has over the Judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control Congress or the Executive when acting in their legislative capacity, or to have only such influence as the force of their reasoning may deserve."

Before the utterance of these opinions by the Chief Justice of Pennsylvania and President Jackson, only the germs of their controlling idea were to be found in the speeches and writings of American statesmen. The idea is traceable in the debates of some of the ratifying conventions of 1788, but it did not reach the dignity and influence of a judicial utterance and a party maxim until the days of Gibson and Jackson. The notion that the correction of legislative abuses is to be sought not in the opinion of the courts, but at the polls, was given the seal of authority, as Jackson and his followers believed, by the overwhelming support which he and they received at the November election in 1832, when the renewal of the bank's charter was a national issue.1 It was the first great stride of the American people toward populism. Its practical effect, which was to be too far-reaching even to estimate, dates from Jackson's veto message on the bank bill. The whole motive of the idea was to prove that the judiciary in the American system of government is not a peculiar organ under the Constitution to prevent legislative encroachments on the powers reserved by the people. In other words, Gibson, Jackson and their supporters would have the American people depend, not on the

1 November 6, 1832. The popular vote for Jackson and Van Buren was 687,502; for Clay and Sargeant, 530,189.

480

GIBSON ON SOVEREIGNTY.

courts, but on themselves to correct abuses that might arise under the political system.

Gibson declared that the notion of a complication of counter checks, and he meant by this the doctrine of checks and balances of which Hamilton and his school made so much account, as a preventive of abuses had been carried to an extent in theory of which the framers of the Constitution had never dreamed. "When the entire sovereignty was separated into its elementary parts," said he, "and distributed to its appropriate branches, all things incident to the exercise of its powers were committed to each branch exclusively." The negative, which each member of the legislature might exercise in regard to the act of another, was thought sufficient to prevent material infraction of the restraints which were put on the power of the whole, and he insisted that had it been intended to interpose the judiciary as an additional barrier, the matter would not have been left in doubt: "The Judges would not have been left to stand on the insecure and ever shifting ground of public opinion as to constructive powers; they would have been placed on the impregnable ground of an expressed grant." So clear would have been their authority that they would not have been compelled to resort to the debates in the Convention that framed the Constitution or to the opinion that generally prevailed at the time of its formation. He would test a Constitution like a statute, it being presumed in their case that it contained the whole will of the body from which it emanated.

The whole doctrine of the judicial power, as laid down by Gibson, and as applied by Jackson in practical politics, was very alarming to the statesmen and politicians of the Federalist school. National Republicans like John Quincy Adams considered Gibson's opinion as embodying

ADAMS'S COMMENT ON GIBSON.

481

the opposition to that broad construction of the Constitution which distinguishes the decisions of the Supreme Court in Marshall's time, and to the legislation for internal improvements, for the bank and for the tariff which the national Republican party labored to enact. Adams greatly feared that Gibson would be appointed to fill the vacancy in the Supreme Court of the United States, occasioned by the death of Bushrod Washington, in 1829. He was somewhat relieved when Henry Baldwin, another Pennsylvania judge, was selected. What touch of the true Adams spirit was there in this entry in the famous "Memoirs," after a call from Justice Baldwin? "This is a politician of equivocal morality," writes Adams, "but I hope will make a more impartial judge. I told him I had been gratified by his appointment, which was true, because I dreaded the appointment of Gibson, the ChiefJustice of Pennsylvania, precisely the most unfit man for the office in the United States." 1 Chief-Justice Gibson lived to change his opinion of the place and function of the American courts, and gave two reasons for the change.

In 1845, a case came before him involving the principles which he had laid down twenty years before.2 The State of Pennsylvania had recently adopted a new constitution, that of 1838. Chief-Justice Gibson held that the Convention which framed it had by its silence sanctioned the pretenses of the courts to deal freely with the acts of the legislature. But his second reason was more persuasive: he had changed his opinion "from experience of the necessity of the case." The affirmation of Gibson's early opinion by President Jackson and by the people at his second election, happily did not enthrone.

1 Memoirs, VIII, 174.

2 Morris vs. Clymer, 2 Pennsylvania St., 281.

482

THE REACTION AGAINST JACKSONIANISM.

the idea that the American judiciary has no peculiar functions to construe the laws. On the contrary, a reaction set in, even at the time of Jackson's re-election. It may be said that any judicial review of American history, from the Revolution to the Compromise of 1850, would be false if it did not record not only the predisposition of the American people to recognize a peculiar function in the judiciary to construe the laws, but also to accept the decision of a lawfully organized court as final. The fundamental rule was briefly put by Webster, that the law is the supreme rule for the government of all, and it may truthfully be said that the most serious shock which American political institutions could have received during the first seventy-five years of their history, would have been the violation of the confidence which the American people, during that time, put in their courts.

A distinguished English jurist has pointed out that administrative law, the droit administratif, for which English phraseology supplies no proper equivalent, is unknown to English judges and counsel; and he has shown with equal truth that in countries, which like the United States have derived their civilization from English sources, the system of administrative law and the very principle on which it rested are unknown.1 The term has made its appearance in recent years in America, and more particularly in institutions of learning, and has been used by some legal writers, but it was unknown to the American people during the period now under review. Administrative law, as defined by Mr. Dicey is "that por tion of French law which determines the possession and

1

1A. V. Dicey, "The Law of the Constitution;" Chap. XII. See his discussion of the true nature of constitutional law in the first of his lectures introductory to the study of the law of the Constitution, pp. 1-34.

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