while no doubt usually retaining that bias or tendency of his mind which party training produces. At present all the judges but three belong to the Republican party, but although the Democrats regret this, and when they came into power welcomed the prospect of putting in their own men as vacancies occur, the circumstance does not affect their respect for the court and their faith in its uprightness. The desire for an equal representation of both parties is based, not on any fear that suitors will suffer from the influence of party spirit, but on the feeling that when any new constitutional question arises it is right that the tendencies which have characterized the Democratic view of the Constitution should be duly represented over against those supposed to influence the Republicans.

Apart from these constitutional questions, the value of the Federal courts to the country at large has been inestimable. They have done much to meet the evils which an elective and ill-paid State judiciary inflicts on some of the newer and a few even of the older States. The Federal Circuit and District judges, small as are their salaries, are in most States individually superior men to the State judges, because the greater security of tenure induces abler men to accept the post. Being irremovable, they feel themselves independent of parties and politicians, whom the elected State judge, holding for a limited term, may be tempted to conciliate with a view to re-election. Plaintiffs, therefore, when they have a choice of suing in a State court or a Federal court, frequently prefer the latter; and the litigant who belongs to a foreign country, or to a different State from that in which his opponent resides, may think his prospects of an unbiassed decision better before it than before a State tribunal.

Federal judgeships of the second and third rank (Circuit and District) are invariably given to the members of the President's party, and by an equally well-established usage, to persons resident in the State or States where the circuit or district court is held. But cases of corruption, or even of pronounced partisanship, are practically unknown. The chief present defect is the inadequacy of the salaries of the District judges, and the inoccasional departures in England (as notably in the recent case of Lord Justice Holker, who, having been Attorney-General of one party, was, in respect of his eminent merits, appointed Lord Justice of Appeal by the other) from the practice of political appointments to judicial office. Such non-political appointments are however occasionally made in the several States by the governors, or even (as in the case of Chief-Justice Redfield of Vermont) by the legislature.

sufficiency of the staff in the more populous Eastern States to grapple with the vast and increasing business which flows in upon them. So too, in the Supreme court, arrears have so accumulated that it is now more than three years from the time when a cause is entered before it can come on for hearing. Some have proposed to meet this evil by limiting the right of appeal to cases involving a considerable sum of money; but a better remedy would be to divide the Supreme court into two divisional courts for the hearing of ordinary suits, reserving for the full court points affecting the construction of the Constitution.

One question remains to be put and answered.

The Supreme court is the living voice of the Constitution-1 that is, of the will of the people expressed in the fundamental law they have enacted. It is, therefore, as some one has said, the conscience of the people, who have resolved to restrain themselves from hasty or unjust action by placing their representatives under the restriction of a permanent law. It is the guarantee of the minority, who, when threatened by the impatient vehemence of a majority, can appeal to this permanent law, finding the interpreter and enforcer thereof in a court set high above the assaults of faction.

To discharge these momentous functions, the court must be stable even as the Constitution is stable. Its spirit and tone must be that of the people at their best moments. It must resist transitory impulses, and resist them the more firmly the more vehement they are. Entrenched behind impregnable ramparts, it must be able to defy at once the open attacks of the other departments of the government, and the more dangerous, because impalpable, seductions of popular sentiment.

Does it possess, has it displayed, this strength and stability? It has not always followed its own former decisions. This is natural in a court whose errors cannot be cured by the intervention of the legislature. The English final Court of Appeal always follows its previous decisions, though high authorities have declared that cases may be imagined in which it would refuse to And that court (the House of Lords) can afford so to

do so.

1 The Romans called their chief judicial officer "the living voice of the civil law"; but as this "civil law" consisted largely of custom, he naturally enjoyed a wider discretion in moulding and expanding as well as in expounding the law than do the American judges, who have a formally enacted constitution to guide and restrain them.

adhere, because, when an old decision begins to be condemned, Parliament can forthwith alter the law. But as nothing less than a constitutional amendment can alter the law contained in the Federal Constitution, the Supreme court must choose between the evil of unsettling the law by reversing, and the evil of perpetuating bad law by following, a former decision. It may reasonably, in extreme cases, deem the latter evil the greater.

The Supreme court feels the touch of public opinion. Opinion is stronger in America than anywhere else in the world, and judges are only men. To yield a little may be prudent, for the tree that cannot bend to the blast may be broken. There is, moreover, this ground at least for presuming public opinion to be right, that through it the progressive judgment of the world is expressed. Of course, whenever the law is clear, because the words of the Constitution are plain or the cases interpreting them decisive on the point raised, the court must look solely to those words and cases, and cannot permit any other consideration to affect its mind. But when the terms of the Constitution admit of more than one construction, and when previous decisions have left the true construction so far open that the point in question may be deemed new, is a court to be blamed if it prefers the construction which the bulk of the people deem suited to the needs of the time? A court is sometimes so swayed consciously, more often unconsciously, because the pervasive sympathy of numbers is irresistible even by elderly lawyers. A remarkable example is furnished by the decisions (in 1876) of the Supreme court in the so-called Granger cases, suits involving the power of a State to subject railways and other corporations or persons exercising what are called "public trades" to restrictive legislation without making pecuniary compensation.1 I do not presume to doubt the correctness of these decisions; but they evidently represent a different view of the sacredness of private rights and of the powers of a legislature from that entertained by Chief-Justice Marshall and his contemporaries. They reveal that current of opinion which now runs strongly in

1 See Munn v. Illinois, and the following cases in 94 U.S. Rep. 193. This was one of those cases in which the court felt bound to regard not only the view which it took itself of the meaning of the Constitution but that which a legisla ture might reasonably take.-See Chapter XXXIV. post. As to the non-liability to make compensation where licences for the sale of intoxicants are forbidden, see Mugler v. Kansas, decided in the Supreme court of the United States, 5th December 1887.

America against what are called monopolies and the powers of incorporated companies.

The Supreme court has changed its colour, i.e. its temper and tendencies, from time to time, according to the political proclivities of the men who composed it. It changes very slowly, because the vacancies in a small body happen rarely, and its composition therefore often represents the predominance of a past and not of the presently ruling party. From 1789 down till the death of Chief-Justice Marshall in 1835 its tendency was to the extension of the powers of the Federal government, and therewith of its own jurisdiction, because the ruling spirits in it were men who belonged to the old Federalist party, though that party fell in 1800, and disappeared in 1814. From 1835 till the War of Secession its sympathies were with the doctrines of the Democratic party. Without actually abandoning the positions of the previous period, the court, during these years when Chief-Justice Taney presided over it, leant against any further extension of Federal power or of its own jurisdiction. During and after the war, when the ascendency of the Republican party had begun to change the composition of the court, a third period opened. Centralizing ideas were again powerful: the vast war powers asserted by Congress were in most instances supported by judicial decision, the rights of States while maintained (as in the Granger cases) as against private persons or bodies, were for a time regarded with less favour whenever they seemed to conflict with those of the Federal government. In none of these three periods can the judges be charged with any prostitution of their functions to party purposes. Their action flowed naturally from the habits of thought they had formed before their accession to the bench, and from the sympathy they could not but feel with the doctrines on whose behalf they had contended. Even on the proverbially upright and impartial bench of England the same tendencies may be discerned. There are constitutional questions, and questions touching what may be called the policy of the law, which would be decided differently by one English judge or by another, not from any conscious wish to favour a party or a class, but because the views which a man holds as a citizen cannot fail to colour his judgment even on legal points.

The Fathers of the Constitution studied nothing more than to secure the complete independence of the judiciary. The President was not permitted to remove the judges, nor Congress to

diminish their salaries. One thing only was either forgotten or deemed undesirable, because highly inconvenient, to determine, -the number of judges in the Supreme court. Here was a weak point, a joint in the court's armour through which a weapon might some day penetrate. Congress having in 1801, pursuant to a power contained in the Constitution, established sixteen Circuit courts, President Adams, immediately before he quitted office, appointed members of his own party to the justiceships thus created. When President Jefferson came in, he refused to admit the validity of the appointments; and the newly elected Congress, which was in sympathy with him, abolished the Circuit courts themselves, since it could find no other means of ousting the new justices. This method of attack, whose constitutionality has been much doubted, cannot be used against the Supreme court, because that tribunal is directly created by the Constitution. But as the Constitution does not prescribe the number of justices, a statute may increase or diminish the number as Congress thinks fit. In 1866, when Congress was in fierce antagonism to President Johnson, and desired to prevent him from appointing any judges, it reduced the number, which was then ten, by a statute providing that no vacancy should be filled up till the number was reduced to seven. In 1869, when Johnson had been succeeded by Grant, the number was raised to nine, and the legal tender decision given just before was presently reversed by the altered court. This method is plainly susceptible of further and possibly dangerous application. Suppose a Congress and President bent on doing something which the Supreme court deems contrary to the Constitution. They pass a statute. A case arises under it. The court on the hearing of the case unanimously declares the statute to be null, as being beyond the powers of Congress. Congress forthwith passes and the President signs another statute more than doubling the number of the justices. The President appoints to the new justiceships men who are pledged to hold the former statute constitutional. The Senate confirms his appointments. Another case raising the validity of the disputed statute is brought up to the court. The new justices outvote the old ones: the statute is held valid the security provided for the protection of the Constitution is gone like a morning mist.

What prevents such assaults on the fundamental law-assaults which, however immoral in substance, would be perfectly legal in