The American Judiciary

by Simeon E. Baldwin

In 1798, the Alien and Sedition Laws were passed, and a crime previously cognizable exclusively in the State courts was made a subject of prosecution in those of the United States if it affected an officer of the United States. A member of Congress, Matthew Lyon, of Vermont, who was sentenced in the Fall of that year to a fine of $1,000 and four months in jail for writing of the President and Senate, that his message to Congress in 1797 was a bullying speech, which the Senate in a stupid answer had echoed with more servility than ever Geo. III. experienced from either house of parliament, served his time and paid the fine, but for the amount of the latter he was reimbursed by Congress in 1840.

The case of Jonathan Robbins[Footnote: See Chap. III.] in South Carolina in 1799, showed that the Circuit Court at the request of the President could surrender an American citizen to a foreign government to be carried off and tried for murder. This and the sentence of Lyon became immediately the subject of hot discussion in Congress, and both contributed to the political revolution which put Jefferson in the seat of Adams in 1801.

The creation by the outgoing party of places for eighteen new Circuit Judges appointed by Adams in the last month of his administration strengthened the popular feeling that the courts of the United States were too powerful. That Act was at once repealed,[Footnote: See Chaps. IX, XXII.] and also the provision for the next regular term of the Supreme Court. The latter measure was taken to prevent any legal proceedings in the Supreme Court to secure its intervention in behalf of the displaced judges.

The new circuit system had been swept away, but the full bench at
Washington, headed by Marshall, remained. The unsuccessful
impeachment of one of them followed in 1804.[Footnote: See
Chap. III.]

His acquittal the next year, and that of a majority of the Supreme Court of Pennsylvania,[Footnote: McMaster, "History of the United States," III, 159.] who were impeached there at the same time for punishing a libel on certain proceedings before that court by a sentence of imprisonment, satisfied all that it was practically impossible to secure the removal of a judge except for the gravest cause. Judicial independence had been secured by the very struggle to defeat it. What has won in any contest finds favor with the multitude. They admire a victor. From this time on the courts both of the United States and the States grew in public esteem. When those of the former seemed to trench on the fields of State sovereignty, particularly in the South, the inroad was resented.[Footnote: See letters of Marshall alluding to this, in "Proceedings of the Massachusetts Historical Society," 2d Series, XIV, 325, 327, 329, 330.] In one Southern State it was even opposed by force.[Footnote: See Chap. X.] As late as 1854 the supremacy of the Supreme Court of the United States in expounding the federal Constitution was contested by the courts of a Northern State; there also in a case growing out of the system of slavery.[Footnote: Ableman v. Booth, 21 Howard's Reports, 506.]

Another decision by the same tribunal of a similar nature—that in the Dred Scott case[Footnote: Dred Scott v. Sandford, 19 Howard's Reports, 393.]—greatly strengthened the confidence of the Southern people in the federal courts, and weakened that of the North.

It did much to bring on the Civil War, but the result of that struggle was to confirm the authority not only of the Supreme Court but of the Supreme Court as it was under Marshall and his original associates. In 1901, the centenary of his appointment was celebrated all over the country, North and South. Such a tribute was never paid before in any country to the memory of a judge. His services were commemorated for the very reason that led Jefferson to depreciate them—because they led to the establishment of a strong national government with a controlling judicial authority adequate to protect it within its sphere from interference or obstruction in any way by any State.

Confidence in the State courts has also been strengthened during the last century. It was greatly shaken at the time of the fall of the Federalists. They had lost the executive and legislative power, but they retained the judicial, and the Republicans found it hard to tolerate courts that represented the political ideas of a former generation. This continued long after the extinction of the Federalist party, and often extended to distrust of judges elected by the Republicans who were thought to have become affected by the influence of their senior associates.

In the New York constitutional convention of 1821, Peter R. Livingston appealed to the lawyers present to say "whether it has not been the case that when a man in the country of any political standing has had a suit depending at a circuit court, he has not consulted with his counsel to know what judge was to preside at the circuit; and whether he has not been frequently told that a political judge was to preside and it would not do to let the cause come on."[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 618.] Who, he asked, were the present judges of their Supreme Court? "Judge Spencer came into office under a republican administration; Judge Van Ness was appointed by a mongrel council; and the elevation to the bench of Judge Platt was occasioned by the defection from the Republican ranks of a man elected to the Senate from the county of Dutchess, who acted the part of a political Judas, and sold his party. We have been bought and sold—there is not one of these men who would have been on the bench if our administration had been truly republican…. There is not a man in this Convention who is a republican of any standing or character who would like to have his liberty or property placed in the hands of a political judge of a different party."[Footnote: Reports of the Proceedings and Debates of the Convention of 1821, 620.]

The judiciary may also have suffered somewhat in the esteem of dispassionate observers on account of its attitude in many of the States toward the financial enterprises in corporate form, in which so much money was made and lost in the first third of the nineteenth century. In commenting on a judicial opinion in a Southern bank case, the author of one of our leading American legal treatises, himself once a judge, has referred to this period in these plain words: