(For the United States Magazine & Democratic Review

THE

UNITED STATES MAGAZINE

AND

DEMOCRATIC REVIEW.

Vol. 1. No. 2.

THE SUPREME COURT OF THE UNITED STATES.

ITS JUDGES AND JURISDICTION.

THE late renovation in the constitution of this august body, by the creation of seven of its nine members under the auspices of the present democratic ascendency, may be regarded as the closing of an old, and the opening of a new, era in its history. And certainly to those who have looked on, for so many a weary year, in sorrow and almost in despair, at the career of high-handed judicial legislation, which it was so proudly pursuing, this correction-salutary, however tardy-of the anti-democratic tone of principle that has so long characterized it, affords a subject of sincere congratulation. The new cycle, then, that has just dawned, presents a fit occasion for a retrospect of the past measures, which we will intersperse with a few characteristic sketches of the men and manners, of that dignified banc. By establishing in the public mind, at this time, distinct ideas of the errors of the past, we shall most effectually guard against their possible recurrence for the future.

We are aware of the blind veneration which has heretofore sealed the eyes of a very large proportion of the public, whenever their looks have been directed towards that sacro-sanct tribunal, in prostrate submission to its presumed infallibility; and, in discussing our subject with the freedom which it demands, many a reader may perhaps hold up his hands in holy horror at the impious temerity. But this abject mental subjection to authority and assumption is unworthy equally of our country and age. We despise that timid prudery in politics which has become too much in vogue. It is high time to print what has been often and earnestly spoken, and what every one ought to know. Freedom of discussion, of all subjects within the range of human ken, from highest to lowest, is the vital principle of American liberty. The noblest and best of institutions can be preserved in their purity only by the perpetual vigi

lance of public opinion. Their best friends are those who most frankly and freely agitate the frequent discussion of the first prineiples on which they are founded, and by which their conduct should be ever jealously judged; and those who would inculcate that blind veneration and submission to which we have alluded, and thus leave free scope to the gradual developement of those abuses which seem inseparable from the practical working of all human institutions, are in truth their most dangerous enemies.

We certainly are not aware that this humble deference, which those who affect to be most shocked at the reckless boldness of democratic free inquiry claim for all those existing powers, privileges and dignities, to the evils or abuses of which that spirit might be presumed to menace possible danger, has been, or is, exhibited by themselves, in any very remarkable manner, towards those things and persons which the votaries of the democratic faith, in our conflicts of party creeds, have been wont to regard as their dearest objects of reverence. To say nothing of the licentiousness of a party press, by which language is habitually exhausted for the vilification of the best and purest of men, and the wisest and most honest of measures, have we not heard, for instance, of a President, whose wont it was, open-mouthed, at his presidential dinners, to speak of "that old fool, Franklin?" The practice, once universal among the members of the political school of that President, of unreserved execration of two of the brightest luminaries of American democracy, Jefferson and Madison, has not yet entirely died away; though, as against the former, but a feeble echo yet lingers on our ears; and of the latter, many of those same gentry have by this time become not less zealous in panegyric, than they were erst in abuse.

We cannot but acknowledge a lamentable deficiency of real moral independence too extensively pervading our society-especially, we think, on our sea-board-notwithstanding the peculiar boast of our national anthem. Above all, the professional bigotry and subserviency of lawyers are the most inveterate. State, church, medicine, science, and the useful arts-all these are to a greater or less extent Americanized; but jurisprudence remains still almost stationary at at the old Blackstone moorings. The peerage of the bar yet stickles for exclusive privilege and foreign precedent; and to read the fulsome and foolish post-obitorations' of some of these legal peers on each other, no wonder that foreigners undervalue us as the most clannish, hyperbolical, and gasconading of mankind.

We shall, then, speak freely and candidly of these grave and potent dignities. It is our opinion that the judiciary system of the United States is based on false principles. The entire omission, in its organization, of the element of responsibility to public opinion— that great conservative principle on which the health and vitality of every other department of our system depends-the neglect of the

essential distinction between judicial independence and judicial irresponsibility, which had its origin in a deceptive analogy between our system of national, and the English system of monarchical, sovereignty, we look upon as a fatal error. And we see not less clearly an illustration of the correctness of this view in the history of the highest tribunal of the Federal Judiciary, than in most of the minor courts of the respective States.

Our review of so large a subject must necessarily be cursory; it shall at least be honest and true, though it may strike many readers as bold; though we shall nought extenuate, we shall set down nought in malice; and though we may condemn past abuses, it shall be with a single view to their future remedy. Whatever may be our ideas of the proper theory on which our American judiciary system should be modelled, we acquiesce in it as established; and are only anxious to sustain, exalt and improve it, in common with all our other American institutions. To preserve, we would purify. We would thus vindicate and guard its constitutional and legitimate jurisdiction; its real, lasting usefulness and dignity; together with that respect of the bar, and confidence of the community, which we would sedulously cultivate, for what ought to be the cheap, prompt, impartial and independent administration of justice and nothing

more.

It is a curious fact, which no where distinctly appears, either in the Federalist, the lectures of Wilson, the notes of Tucker, the commentaries of Kent or Story, or, as far as we recollect, in any American history-it is nevertheless a fact, that the creation of the Federal Judiciary was partly owing to foreign influence-to British debt-and that ascendency, which launched our American Government on a sea of troubles, in the midst of such rocks of the British channel as a funding system, national bank, internal taxation, soon stranding Washington's administration on the quicksands of civil war-" malum extremum discordia," saith that gloomy but profound teacher, Tacitus-dreadful warning, which all the modern history of Spanish America should fearfully impress upon us! English creditors, wanting confidence in American State courts, succeeded in procuring the establishment of Federal courts, that they might in them enforce the collection of those debts, the justice of much of which one of Jefferson's most elaborate and masterly state papers, while Secretary of State, goes to disprove. English debt!-that king's-evil of these United States, by which we are now again cancered and convulsed-whose contractors and advocates are, as then, and always, chiefly found among those friends of funding, banking, incorporating, speculating and taxing, among whom but few friends are to be found to the principles of Jeffersonian republicanism.

No act of Congress carries into complete effect the full constitutional grant of jurisdiction to the Federal courts. The Supreme