THE LAWYER IN PUBLIC AFFAIRS
through peace and war, through evolution and revolution, since the year 1215. Passing to the period of Constitutional interpretation, especially during the life of John Marshall, its great master, we find that practically every one of the command ing lawyers who practised in the Supreme Court from the days of Marbury v. Madison, the Dartmouth College case, and onward, shone as bright illuminating stars in one or other branch of Congress or in state legis lative bodies. It often happened that the man who, in the morning, had made a great argument, on constitutional lines in the court, passed into one or other house of Congress to repeat, or to emphasize, or to enforce, on the same day, in the real life of politics, the opinion he had expressed or illustrated as an advocate. The precedents thus established have always been main tained, because the same thing may and does happen to-day although, in spite of the growth of the country, this particular phase of legal work does not have the same relative importance that was attached to it in the earlier days of our history. RELATION
OF
JUDGES
TO
PARTY DIVISION
It is interesting and valuable, then, to examine briefly the relations which our courts, both original and appellate, federal as well as state, have borne to partisan politics. In doing so we find that, from our earliest history as a people, long be fore our national system had developed its character, our courts had begun to draw to the Bench, and into the legal profession, not only men who were strong partisans of some idea, but those who had taken a prominent part in the political activities of the time. It was not always the political partisan, because it must be borne in mind that politics have not always been the striking line of division. In our earliest days, dogma and theological divisions, out of which from the beginnings of the mod ern history of our Western peoples, their political divisions have finally grown, were
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the most potent agencies in attracting men to one side or the other of some problem, whether it related to this world or was supposed to belong to the affairs of the next. Beginning, however, with our formal na tional life, when we had attained our ma jority as a people, differences of political opinion have been the basis of party align ment. Since that time it has been the rule to draw from the respective political parties, now from one and again from the other. And, always taking the country as a whole and over periods of reasonable length, the result has been a fairly equal distribution among the representatives of differing opin ions, whether as to number, ability, or result ing influence. Nor have the men thus chosen to fill our judicial offices been the mere formal ad herents of parties. They have, in general, been devoted, during their political careers, to the organization as well as to the prin ciples of their parties. They have, in fact, been the advocates of what one of the great est of our modern leaders has defined as a "sturdy partisanship." This has been dis tinctive of that culminating judicial body of our own history and of the world: the Supreme Court of the United States. In our earliest days its chief justices were partisans of the then dominant idea in our politics. The period of struggle had orig inally united them so that lines of division had almost disappeared. But, when this period was over, all the uncertainty of the past, aided, perhaps, by the absence of precedents, lined them up more strongly on opposite sides of the great questions than even at later periods. As their scope was narrower their outlook on the horizon about them was naturally sharper, keener, more intense. Perhaps their partisanship meant even more for them than it does for us, when the necessity has arisen for every intelligent man to take in a wider range of thought and conditions. However, this very fact so demonstrated,
