UNITED STATES SUPREME COURT

AND THE SOVEREIGNTY OF

THE PEOPLE

BUT few words remain to be added to those so well spoken by my distinguished brethren in concluding, on the part of the Bar, the expression which this occasion calls for. We have thought it well to mark, in a manner thus significant and conspicuous, the centennial anniversary of our highest and greatest tribunal; to review, so far as the flying hour allows, its eventful and interesting history; to recall some of its memories, cherished and imperishable; and to consider, in the light of a century's experience, what has been, and what is like to be hereafter, its place and its influence as an independent constitutional power in the Federal government of this country.

We cannot forget that in its origin it was an experiment, untried and uncertain. Judicial history has not furnished another example of a court created by an authority superior to legislation and beyond the reach of executive power, clothed with a jurisdiction above the law it was appointed to administer, and charged not merely with the general course of public justice, but with the limitation of the powers

of political government and the adjustment of the conflicting claims of sovereign States. The hundred years that now terminate have tested the value of all American institutions. Fortunate as they have been for the most part, it will yet be the judgment of dispassionate history that no other has so completely justified the faith of its authors, nor fulfilled with such signal success the purpose of its foundation.

What was that purpose? Not the limited original jurisdiction of the Court, dignified and important, but rarely invoked. Not chiefly, even, its ordinary appellate jurisdiction, extensive and beneficent as it is, most desirable, yet perhaps not indispensable. Not for these objects, great though they are, was it placed, nor did it need to be placed, on the singular eminence it occupies. Its principal and largest function was designed to be, as it has been, the defence and preservation of the Constitution that created it as the permanent fundamental law on which our system of government depends.

Had that instrument been left only directory to the Legislature, to be construed and given effect as the exigencies of party or the purposes of the hour might demand; had it been referred to the conflicting determination of various courts, with no supreme arbiter to correct their mistakes, or to harmonize their disagreements, so that its meaning might depend upon the State or the tribunal in which the question happened to arise, it would speedily have become but the shadow of an authority that had no real existence, fruitful in a discord it was powerless to allay. American experience has made it an axiom in political science that no written constitution of government

can hope to stand without a paramount and independent tribunal to determine its construction and to enforce its precepts in the last resort. This is the great and foremost duty cast by the Constitution, for the sake of the Constitution, upon the Supreme Court of the United States.

The jurisdiction of the Court over questions of this sort, and the dual sovereignty so skilfully divided between the States and the Federation, as they are the most striking, are likewise the only entirely original features in the Constitution. All else found a precedent or, at least, a prototype in previous institutions. In its other branches it is mainly the combination and adaptation of machinery that was known before. It was to be expected, therefore, that the earliest and most critical exercise of the new power conferred upon the Court would be displayed in dealing with the new form of sovereignty at the same time devised, and bringing into harmony those opposite forces that might so easily have resulted in conflict and disaster. The questions that have arisen in this field have been usually the most delicate, often the most difficult, always the most conspicuous of all that have engaged the attention of the Court. While it has been charged with the limitation of many other departments of governmental authority, here have been found hitherto its most prominent employment and the most dangerful emergencies it has had to confront. Here have taken place its most celebrated judgments, the most signal triumphs of its wisdom, its foresight, as well as its moral courage-rarest of human virtues. It is to this sagacious judicial administration of the Constitution that we are principally indebted for the

harmonious operation that has attended the Federal system, each party to it made supreme in its own sphere, and at the same time strictly confined within it, neither transgressing nor transgressed. Looking back now upon this long series of determinations, it is easy to see how different American history might have been had they proved less salutary, less wise, and less firm. The Court did not make the Constitution, but has saved it from destruction. Only in one great conflict, generated by the single inherent weakness of the Constitution, and, unhappily, beyond judicial reach, has the Court failed to maintain inviolate all the borders and marches of contiguous jurisdiction, and to keep unbroken the peace of the Union.

But it still remains to be observed that the service of preserving, through the Constitution, the Union of the States, great and distinguished as it is, and vital as it is, has been wrought upon the machinery of government, not upon its essence. Beyond and above the question how a political system shall be maintained lies the far larger question, Why should it be maintained at all? The forms of free government are valuable only as they effect its purpose. They may defend liberty, but they do not constitute it, nor necessarily produce it. Their ultimate permanence, therefore, among the men of our race must depend, not on themselves, but on their results.

The true analysis of the function of the Supreme Court, as the conservator of the Constitution, involves, consequently, the further inquiry, What is the value of the Constitution to those who dwell under the shadow of its protection?

It rests upon the foundation-stone of popular sov