Page:The Green Bag (1889–1914), Volume 22.pdf/173

 Roger Brooke Taney

157

of the partisan narrator, or are guided and

Of the eﬁect of this interpretation Pro

informed by an impartial study of con stitutional law. If many of the political critics seem to forget, when reviewing the work of Taney, that there is no ju

fessor McDonald says in the “History of the American Nation," edited by Alfred

Bushnell Hart, under the title of “Jack sonian Democracy” :—

dicial alchemy by which you can evolve

sound constitutional law out of the in stincts of mere partisan politics, so the constitutional lawyer sometimes fails to appreciate the motive power of facts, and becomes forgetful of the truth that in a democracy grave questions aﬁecting its welfare are never settled until settled

according to the dictates of the moral consciousness and sound sense of justice of the plain people. The stream can

It was the development of the doctrine of implied powers. . . stated by Marshall in a. long series of decisions [that] had given the judicial authority a scope far beyond anything that could have been dreamt by those who saw the national government inaugu rated. . . . If progress was to continue in this direction the authorityof the nation would soon be overwhelmingly supreme, and the “sovereignty of the states" would become ere long only a memory and a name.

No process of reasoning is required to

rise no higher than its source, “and the

show that when once the doctrine of

general standard of justice in a munici

implied powers is accepted in its broadest

pal society is so much of the general rule of morality and ethics as that society chooses to enforce upon its members.” All laws, written or unwritten, really rest upon public opinion.

In the realm of constitutional juris prudence the lawyer who has become not only familiar with systems and codes

but with their administration by courts of justice, treads with surer footing and

is a more illuminating guide than he who deals with the subject solely as a theorist or treats the sovereignty of the

scope, there is no observable limit to

which it may not be extended in the hands of a strong Chief Justice, sup

ported by a court which stamps with the impress of ﬁnal authority its construc tion of our national charter. interesting

and instructive,

I

While cannot

enter farther into this ﬁeld, and refer

to the attitude and decisions of the court upon constitutional questions since Taney’s time. When Marshall died, three cases of large interest had been

government as mere incidents varying

argued and discussed, but apparently were not ready for decision. By reason of his death and lack of a majority they

with the ebb and ﬂow of political par

now came on for reargument.

states and the prerogatives of the central

ties. In his “John Marshall," speaking of Marshall’s work, Professor James Bradley Thayer observes :— He determined to give full effect to all the affirmative contributions of power that went to make up a great and efﬁcient national government, and fully also to inforce the national restraints and prohibitions upon the states. In both cases he included not only the powers expressed in the Constitution but those also which should be found, as time unfolded, to be fairly and clearly implied in the objects for which the federal government was established.

Let us for a moment glance at the personnel of that great bench. To the right of the Chief Justice sits Joseph Story, on the left William Thompson.

v-

Then follow in the order of their appoint ment McLean, Baldwin, Barbour, while Wayne, the last appointee of President

Jackson, who had ﬁlled the majority of the seats during his Presidency, and destined to survive all his associates,

was the junior judge. The original practice had been for the Chief Justice to act as the organ of the court, and while

.l,._1-,-

l