The Theory of Social Revolutions

by Brooks Adams

AMERICAN COURTS AS LEGISLATIVE CHAMBERS

In one point of view many of the greatest of the Federalists were idealists. They seem sincerely to have believed that they could, by some form of written words, constrain a people to be honest against their will, and almost as soon as the new government went into operation they tested these beliefs by experiment, with very indifferent success. I take it that jurists like Jay and Marshall held it to be axiomatic that rules of conduct should be laid down by them which would be applicable to rich and poor, great and small, alike, and that courts could maintain such rules against all pressure. Possibly such principles may be enforced against individuals, but they cannot be enforced against communities, and it was here that the Federalist philosophy collapsed, as Hamilton, at least partly, foresaw that it must.

Sovereigns have always enjoyed immunity from suit by private persons, unless they have been pleased to assent thereto, not because it is less wrongful for a sovereign than for an individual to cheat, but because the sovereign cannot be arrested and the individual can. With the Declaration of Independence the thirteen colonies became sovereigns. Petty sovereigns it is true, and singly contemptible in physical force as against most foreign nations, but none the less tenacious of the attributes of sovereignty, and especially of the attribute which enabled them to repudiate their debts. Jay, Marshall, and their like, thought that they could impose the same moral standard upon the states as upon private persons; they were unable to do so, but in making the attempt they involved the American judicial system in a maze of difficulties whose gravity, I fear, can hardly be exaggerated. Before entering upon this history, however, I must say a word touching the nature of our law.

Municipal law, to be satisfactory, should be a body of abstract principles capable of being applied impartially to all relevant facts, just as Marshall and Jay held it to be. Where exceptions begin, equality before the law ends, as I have tried to show by the story of King David and Uriah, and therefore the great effort of civilization has been to remove judges from the possibility of being subjected to a temptation, or to a pressure, which may deflect them from impartiality as between suitors. In modern civilization, especially, nothing is so fatal to the principle of order as inequality in the dispensation of justice, and it would have been reasonable to suppose that Americans, beyond all others, would have been alive to this teaching of experience, and have studiously withdrawn their bench from politics. In fact they have ignored it, and instead they have set their judiciary at the focus of conflicting forces. The result has been the more unfortunate as the English system of jurisprudence is ill calculated to bear the strain, it being inflexible. In theory the English law moves logically from precedent to precedent, the judge originating nothing, only elaborating ideas which he has received from a predecessor, and which are binding on him. If the line of precedents leads to wrongful conclusions, the legislature must intervene with a statute rectifying the wrong. The Romans, who were gifted with a higher legal genius than we, managed better. The praetor, by his edict, suppressed inconvenient precedents, and hence the Romans maintained flexibility in their municipal law without falling into confusion. We have nothing to correspond to the praetor.

Thus the English system of binding precedents is troublesome enough in a civilization in chronic and violent flux like modern civilization, even when applied to ordinary municipal law which may be changed at will by legislation, but it brings society almost to a stand when applied to the most vital functions of government, with no means at hand to obtain a corrective. For the court of last resort having once declared the meaning of a clause of the Constitution, that meaning remains fixed forever, unless the court either reverses itself, which is a disaster, or the Constitution can be amended by the states, which is not only difficult, but which, even if it be possible, entails years of delay.

Yet pressing emergencies arise, emergencies in which a settlement of some kind must almost necessarily be reached somewhat rapidly to avert very serious disorders, and it has been under this tension, as I understand American constitutional development, that our courts have resorted to legislation. Nor is it fair for us to measure the sagacity of our great jurists by the standard of modern experience. They lived before the acceleration of movement by electricity and steam. They could not foresee the rapidity and the profundity of the changes which were imminent. Hence it was that, in the spirit of great lawyers, who were also possibly men tinged with a certain enthusiasm for the ideal, they began their work by ruling on the powers and limitations of sovereignty, as if they were ruling on the necessity of honest intent in dealings with one's neighbor.

In 1789 General Washington is said to have offered John Jay his choice of offices under the new government, and Jay chose the chief justiceship, because there he thought he could make his influence felt most widely. If so he had his wish, and very shortly met with disappointment. In the August Term of 1792, one Chisholm, a citizen of South Carolina, sued the State of Georgia for a debt. Georgia declined to appear, and in February, 1793, Jay, in an elaborate opinion, gave judgment for Chisholm. Jay was followed by his associates with the exception of Iredell, J., of North Carolina. Forthwith a ferment began, and in the very next session of Congress an amendment to the Constitution was proposed to make such suits impossible. In January, 1798, five years after the case was argued, this amendment was declared to be adopted, but meanwhile Jay had resigned to become governor of New York. In December, 1800, he was again offered the chief justiceship by John Adams, on the resignation of Oliver Ellsworth, but Jay resolutely declined. I have often wondered whether Jay's mortification at having his only important constitutional decision summarily condemned by the people may not have given him a distaste for judicial life.

The Federalist attempt to enforce on the states a positive rule of economic morality, therefore, collapsed at once, but it still remained possible to approach the same problem from its negative side, through the clause of the Constitution which forbade any state to impair the validity of contracts, and Marshall took up this aspect of the task where Jay left it. In Marshall's mind his work was simple. He had only to determine the nature of a contract, and the rest followed automatically. All contracts were to be held sacred. Their greater or less importance was immaterial.

In 1810 Marshall expounded this general principle in Fletcher v. Peck.[^[18]] "When ... a law is in its nature a contract ... a repeal of the law cannot devest" rights which have vested under it. A couple of years later he applied his principle to the extreme case of an unlimited remission of taxation.[^[19]] The State of New Jersey had granted an exemption from taxation to lands ceded to certain Indians. Marshall held that this contract ran with the land, and inured to the benefit of grantees from the Indians. If the state cared to resume its power of taxation, it must buy the grant back, and the citizens of New Jersey must pay for their improvidence.

Seven years later, in 1810, Marshall may, perhaps, be said to have reached the culmination of his career, for then he carried his moral standard to a breaking strain. But, though his theory broke down, perhaps the most striking evidence of his wonderful intellectual superiority is that he convinced the Democrat, Joseph Story,--a man who had been nominated by Madison to oppose him, and of undoubted strength of character,--of the soundness of his thesis. In 1769 King George III incorporated certain Trustees of Dartmouth College. The charter was accepted and both real and personal property were thereupon conveyed to this corporate body, in trust for educational purposes. In 1816 the legislature of New Hampshire reorganized the board of trustees against their will. If the incorporation amounted to a contract, the Court was clear that this statute impaired it; therefore the only really debatable issue was whether the grant of a charter by the king amounted to a contract by him, with his subjects to whom he granted it. After prolonged consideration Marshall concluded that it did, and I conceive that, in the eye of history, he was right. Throughout the Middle Ages corporate privileges of all kinds, but especially municipal corporate privileges, had been subjects of purchase and sale, and indeed the mediaeval social system rested on such contracts. So much was this the case that the right to return members of Parliament from incorporated boroughs was, as Lord Eldon pointed out in the debates on the Reform Bill, as much private property "as any of your lordships'" titles and peerages.