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The Federal Supreme Court is the most distinctive product of American political genius. Sir Henry Maine, a foreign observer, declares that it is a virtually unique creation. This court is a political body; appointments to its bench are political appointments; and the court cannot be other than the sum of its mem. bers. Jefferson favored appointments for four or six years, with removability by the President and Senate.2

Our constitutional law is even now changeable enough. What would it have been if the judges had not been for life? We should have lost that steadiness and continuity of decision which has been of infinite value to the country. Marshall, as a member of the Virginia Constitutional Convention in 1829, at the age of seventy-four, advocated the life-tenure with convincing power. His long incumbency as chief justice - from 1801 to 1835– gave opportunity for the development of constitutional principles upon identical lines, and on the theory of liberal and elastic interpretation, which has, in the main, proved enduring. In the Virginia Convention, in 1789, he had led in support of the judiciary power of the proposed new government.

1 This was the annual address de- LL.D., of Detroit. See our departlivered before the Grafton and Coös ment of “ Notes." Bar Association, of New Hampshire, at 2 Works III, 256. its last meeting, by Alfred Russell, VOL. XXX.


When Jackson came to the presidency, and filled five places in the court, the judicial pendulum began to swing the other way. It was inevitable that anti-federal political views should stamp themselves .

upon coming constitutional decisions. The first fruit of the altered membership’ was the Charles River Bridge case, which caused the judges and jurists of the school of Marshall to stare and gasp, and even to express apprehension that the country was lost. Yet who can be found at the present day to say that the principle laid down by Taney in 1837 was not a wise and judicious modification of the doctrine of the College case declared in 1819?

Afterwards, however, in the Binghamton Bridge case in 1865, under Federal ideas, strengthened by the Civil War, and interpreted by the appointees of Lincoln, the doctrine of the College case was enforced in the strictest manner. Vainly did the dissenting judges urge that although a corporate charter may be called a contract yet the rules of construction to be applied to it, under the Charles River Bridge case, are the reverse of those adopted as to other contracts, and that not one jot is to be taken by implication. In the thirty years succeeding the last case the College case has been, in general, followed or distinguished according to the political composition of the court. It is a pivotal case between Federal and State-rights doctrine, and it will always be viewed favorably, or the contrary, according to the political predilections of the observer.

Very early the relations of the court toward the State legislatures excited public interest. The Georgia case 1 aroused State jealousy by the declarations of Jay as to the national character of the Union, and the masterly dissent of Iredell furnished thenceforward the armory from which State-rights parties drew their weapons until that doctrine received its death blow in the Civil War. That war put the country back on the platform of Hamilton and the Federalists of 1782, and to stay. At the time of the Georgia case the sentiment of nationality was very weak. The States were still regarded as the fountains of honor, and Jay, the chief justice of the United States, Federalist as he


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1 Chisholm, Ex'r, v. Georgia, 2 Dallas, 419 (1793).

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was, resigned that office to accept the governorship of New York.

In the Maryland case 1 the national idea was vindicated for all time by the unanswerable logic of the great chief justice.

Later, and even after the Civil War, in the Texas case the most accurate statement of the relations of the States and Government, under the constitution, was set forth by Chase, when he declared that the maintenance of both are equally within the care and purpose of the constitution.

In 1809, when an act of Pennsylvania was set aside, armed collision was scarcely avoided.

The most celebrated but one of Federal cases, the College case, arose ten years later, under the provision preventing the States from violating contracts. The turning-point of the decision was the meaning of the word contract. The case has been justly regarded as a bulwark of private property, particularly that of a corporation. The inviolability of private property had been already protected by the fundamental law of every one of the original thirteen States. They had adopted the thirty-ninth article of Magna Charta against arbitrary spoliation, and the rights in general set forth in that instrument. The constitution of our new government, in inserting the provision as to contracts, did substantially the same thing. This was emphasized by the first eleven amendments protecting the States from Federal power. Few can be found to deny that, as a general proposition, the numerous decisions setting aside acts of State legislatures avoiding or abrogating contracts, and doing this upon the precedent of the College case, have been a benefit to the country. The fourteenth amendment amounts to a solemn approval of those decisions, and still further confirms the doctrine of the sacredness of private property.

The first considerable modification of the College case was, as has been said above, in the Charles River case.

Almost forty years later, the so-called Granger cases, in 1876,4 and later the

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8 U. S. v. Peters, 5 Cranch, 136. 4 94 U. S. 155 to 187.

1 McCulloch v. Maryland, 4 Wheaton, 415 (1819).

2 Texas v. White, 7 Wallace, 700 (1868).

Michigan Passenger Rate case, in 1892, and others in the same direction, have established a remarkable limitation of the College case by the introduction into our constitutional jurisprudence of the doctrine of the presumed dedication of private property, corporate or not, to public use, and the affirmative right of the State legislatures to fix the amount of compensation to be charged. While these cases hold that the State may regulate rates, they subject the exercise of that power to the prohibitions in the fourteenth amendment, and declare that the regulations shall be reasonable or else void; and that it is for the courts to declare, in judicial proceedings, whether given rates are reasonable. Undoubtedly the departure from the College case in the Granger cases is the most serious ever made. The lamentations of many judges and jurists in the Charles River Bridge case were more than equaled by the animadversions on these cases.

It is not too much to say that the murmurs of popular discontent with the College case had reached the bench at Washington. The new chief justice was a man from the Mississippi Valley, thoroughly familiar with the transportation business, and the changes of time and circumstance. The court deliberately went outside of the contract between the State and the railroad corporation, and discovered authority for legislative interference with the charges of carriers in the fact that the public generally are affected by the duties of transportation. It is plain that in Marshall's day no such conclusion could have been reached by the bench of the time, and that the Granger cases were the result of the general feeling in the community and the profession against pushing the doctrine of the College case to excess. The court declared ? that it is too late to contend that a charter is not a contract, within the meaning of the constitution, but argued that the contract contained no exemption from legislative interference as to charges, which exemption might have been inserted; and that the railroad corporation expended money and mortgaged its income, charged with knowledge that the legislature might interfere.

i C. & G. T. Ry. Co. v. Wellman, 143 U. S. 339.

2 94 U. S. 161.

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