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that appointed to draft the Declaration of Independence, which sat behind closed doors.
As the judges in England gave their opinions orally, sometimes two or more judges would express their views separately; but the practice involved no principle; and when opinions came to be written out, and were, after due deliberation, agreed to by all of the judges, seriatim opinions usually became superfluous. If Jefferson's plan had been adopted our law books would have been greatly increased in number; and now when we look at our groaning shelves and waning' space we easily reconcile ourselves to the fact that his recommendations were not adopted. His objections are principally interesting as showing his appreciation of the abilities of Marshall, whom he evidently regarded as the autocrat of the bench.
Jefferson seems to have been deeply imbued with the sentiments expressed by Mason, Henry and Grayson in the Virginia convention. They objected to almost every grant of power contained in the proposed Constitution of the United States on the ground that it might be abused. According to that view the Articles of Confederation, which gave to Congress the mere right of solicitation, furnished the most perfect system of government ever devised.
One of the methods proposed by Mr. Jefferson for correction of the errors of the Supreme Court was "by a strong protestation of both houses of Congress that such doctrines advanced by the Supreme Court are contrary to the Constitution; and if afterwards they relapse into the same heresies, impeach and set the whole adrift."
Another plan proposed by Jefferson was that the judges should be appointed for six years, subject to re-appointment by the President, with the approval of both houses. +
Again he said:
“I deem it indispensable to the continuation of this government that they (the judges) should be submitted to some practical
* Id., Vol. X., pp. 192, 199, 198. * Id., Vol. X., p. 198.
and impartial control; and that this, to be impartial, must be compounded of a mixture of state and federal authorities.” #
If such a commission could be raised it is not clear how the impartiality of its members could be guaranteed. As politics are managed at present the prospect would be dark indeed.
Jefferson never accused the judges of corruption; but at one time he seems to have thought them insane. He said:
“I repeat that I do not charge the judges with wilful and intentional error, but honest error must be arrested where its toleration leads to public ruin. As for the safety of society we commit honest maniacs to Bedlam, so judges should be withdrawn from their bench whose erroneous biases are leading us to dissolution."
On one occasion he frankly admitted their honesty. He said:
“Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power and the privileges of their corps. Their maxim is boni judicis est ampliare jurisdictionem; and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control.” +
The so-called maxim that it is the duty of a good judge to increase his jurisdiction is most likely the solemn jest of some ancient and irreverent wag made at the tavern after the adjournment of the court. By increasing their jurisdiction judges increase their labors without increasing their salaries; and, as our judges are usually greatly overworked and pitifully underpaid, they are naturally not greatly inclined to usurpation of unconceded jurisdiction. Jefferson might have remembered that in the case of Marbury vs. Madison, which gave him so much offense, the court declined an extensive jurisdiction expressly conferred by Congress. Within our own time the jurisdiction of the Federal courts has been greatly increased, notably by the XIV. amendment; but the evil of usurpation of jurisdiction without legislative authority, or
| Id., Vol. I., p. 112. * Id., Vol. I., p. 113. † Id., Vol. X., p. 160.
in defiance of law, as apprehended by Jefferson, has not been manifested.
Jefferson easily foresaw that the Supreme Court might not always be right, and he sought for some method of correcting any errors that it might commit; some tribunal which he called "impeccable,” for final supervision. Alas, the impeccable tribunal has never existed in this world. Compared with a search for it the search for the philosopher's stone was reasonable and encouraging. Among a race where such an ideal body might be created probably no tribunals of any kind would be needed. The days of miracles—as well as the days of chivalry—are over.
It is impossible to escape from the maze of human error. We should all agree that the Supreme Court has not always been right; though we could not agree on the proofs. Its opinions, tried as by fire, are put to the severest of tests hundreds of times every day. Its judgments are always in evidence, and are examined with microscopical analysis; whereas the acts and aberrations of the other departments, exacting but little consistency, often pass almost unnoticed, or are soon forgotten. The founders did not expect infallibility; they only made a choice between evils. The court does not claim infallibility. In the tropical luxuriance of modern life new vistas open continually, and the law must change to meet new emergencies. Old principles must be expanded or contracted, or abandoned, as need may require. Law and gov
, ernment contain too many speculative elements to admit of stability or of ideal accuracy; and there is no standard of highest excellence. Our conceptions of the law fluctuate; and the ablest jurists entertain a wholesome fear of rigid definitions and of exact formulas. It is only the impostor that is always right. The Su
. preme Court has often admitted its own errors, and has retraced its steps; and this is the highest achievement which our destiny admits--the correction of inevitable mistakes-and it is in the willingness of the court, not only to examine, but to re-examine, that we must largely rest our hopes. Of course in extreme cases the Supreme Court can always be turned down by constitutional amendment.
Judge Chase had shown on the bench a party spirit that seemed to be wholly inconsistent with that impartiality which is necessary for the proper administration of justice; but his impeachment failed because two-thirds of the members of the Senate could not be mustered to support a conviction. Jefferson favored such a change in the constitution as would allow a conviction on the vote of a mere majority of both houses of Congress; and he contended that errors of opinion should constitute ground for removal. *
This would in effect have given an appeal on all legal questions from the Supreme Court to Congress, complicated with proceedings for the removal of offending judges. As Congress is not necessarily made up of men learned in the law, and professes to be no more than a political body, changing its complexion with partisan vicissitudes, it seems quite evident that this proposed device, if adopted, could only lead to confusion and disaster.
It is obvious that Jefferson had transferred to the Supreme Court a part of the animosity that he entertained towards its chief justice, and that his theories were not consistent. He declared that each of the departments of government should be independent; and yet he favored plans that would have made the judiciary entirely dependent on the legislative department. But the proper corrective, as Jefferson thought, lay in the fact that members of Congress are elected for fixed periods; and that the fear of popular condemnation is always suspended over them like the sword of Damocles. But popular verdicts are not always right; as any one who has run for office and has been defeated will testify. Popular sentiment is proverbially variable, and is subject to sudden alterations. Today the multitude cry “Hosannah,” and to-morrow “Crucify him!” Congress and the President are the outcome of popular elections, and if they were infallible the restraining influence of the Supreme Court would not be needed.
It is clear enough that Jefferson's theories, if carried out, would have destroyed the independence of the judiciary; and, if there is anything disclosed in the lessons of Anglo-Saxon history it is equally clear that an independent judiciary, finally established in England by the act of III. William and Mary, is the firmest support of law and of personal freedom.
* Id., Vol. X., p. 198.
Mr. Jefferson frequently expressed the fear that the liberties of the country were endangered by the Federal judiciary. He said:
“The great object of my fear is the Federal judiciary. That body, like gravity, ever acting with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them.” *
Sentiments of this kind have been so often repeated that many persons really suppose that our liberties may be endangered by the Supreme Court. But that tribunal cannot take the initiative in anything. Its influence is purely negative. It may restrain; it cannot accelerate. It is a shield and not a sword. At the worst it can only condone illegal acts of others; but if it prevented the perpetration of unconstitutional acts by the other departments or by the States only one time out of ten it would still have its reason for being. Whatever it improperly permits would be done if the court did not exist. Experience has demonstrated that it is much less apt to encroach on the States than Congress or the Executive. No revolution has ever been begun by the judiciary. Judges are naturally conservative because the law is so; and they have nothing to gain and everything to lose by civil strife, or by rash experiments.
The necessity for the rule laid down in Marbury vs. Madison has been amply confirmed. It was the boast of Chatham that though the rain and the wind might enter the hovel of the English peasant, the King could not enter; nevertheless every British subject holds life, liberty and property in absolute subjection to the will of Parliament. With us the government is one of limited powers. There is a vast area inaccessible to its exactions; and
* Id., Vol. X., p. 185.