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
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