Page:Harvard Law Review Volume 2.djvu/401

Rh creation of the Supreme Court is the greater part of the small remnant of what was once so great a whole. Modern historical research, however, which cares little for hero-worship or for romance, and which insists that political institutions, like living organisms, are as a rule developed from earlier institutions by a process of selecting and adopting those features which experience has proven to be best adapted to the needs of the political environment, is fast demonstrating that even the lingering bit of poetical statement as to the origin of the Supreme Court will scarcely bear the light of careful investigation.

It is true that De Tocqueville, who wrote in the days of hero-worship and historical romance, pronounced a dictum looking towards the theory of supernatural origin. So, also. Sir Henry Maine has more recently written, that the Supreme Court of the United States is "a virtually unique creation of the founders of the Constitution," an experiment with "no exact precedent for it, either in the ancient or modern world." But then he added, a few lines further, that, "novel as was the Federal Judicature established by the American Constitution as a whole, it nevertheless had its roots in the Past, and most of their beginnings must be sought in England."

It seems, indeed, to be true that the case against the originality of our judicial system can be put even more strongly than it is put by Sir Henry Maine. In fact, it is somewhat strange that this idea of novelty should have spread so widely as it has done, in view of the statement made by Hamilton in the "Federalist" as to the plan of the convention for committing the judicial power in last resort to an independent court, which is the characteristic feature of our system, that, "contrary to the supposition of those who have represented the plan of the convention, in this respect, as novel and unprecedented, it is but a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia."

After many years, in which this view has been overlooked, the historical pendulum is again swinging back to its starting-point. Thus Mr. Alexander Johnston has recently declared that the erection of the judiciary into a position as a coordinate branch of the government, which he characterizes as the great achievement of the convention, and one of the most distinguished successes of the American system, "came in, not with the Convention, but with the adoption of written constitutions by the States." This result, inseparable from the adoption of a permanent exponent of the popular will as the supreme authority by whose provisions the courts must test the validity of legislative action, "had already been obtained in eleven of the thirteen States in 1787, through their adoption of written constitutions; and the Convention, by its coincident adoption of a written constitution, and of a system of courts, copied directiy the results of State experience. Indeed, the germs of the whole system may be traced far back of 1776, into colonial experience." So, also, Mr. James Bryce, in his recent masterly work upon "The American Commonwealth," concludes that the relation of the Federal