The Suprême Court: An American Ideal. Here came the crisis in the Court's his tory, a crisis which was met in such a. man ner that intelligent statesmen thought the judges had once and for all taken leave of their practical senses, and flown to a region so remote as to be unattainable by ordinary mortals. But it was here that the Court, ac cepting the extraordinary position given it by the framers, took the one stand which was ultimately to give it lasting glory. The framers had done their share, the mem bers of the Court themselves were not behind.in doing theirs. In the dark days of in activity, Washington, disturbed by the threateningappearance of public affairs, sent to the Chief Justice and his associates in terrogatories upon certain public questions which were most vitally important to the nation's welfare. He requested the judicial opinion of the Court upon the legal points raised; he asked whether the principles of international law or the treaties of the United States with France gave the latter country or her citizens the right to fit out in the ports of the United States vessels of •war, or to refit, re-arm, or increase their armament; whether France had a right to erect courts within the jurisdiction of the United States for the trial and condemna tion of prizes taken by armed vessels in her service; whether the principle that free bot toms made free goods, and enemy bottoms enemy goods was a part of the law of na tions. The Court declined to give an an swer, asserting with great dignity that it would be manifestly improper for them to anticipate any case which might arise, or in dicate in any way their opinion in advance of argument. Consider the situation, a Court without litigants, called upon in a •dark hour of its country's history by a man universally conceded at the time to be the wisest in the land, to give advice upon inter national problems of law vitally important to the nation. Had the Court acquiesced in Washington's request there can be little
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doubt that its history would have been far different from what it has been. Instead of its magnificent independence, its aloofness from all questions of policy, its demand that President and Congress shall act before • it will determine whether they had the power to act, the Court must have become the national adviser, and shared even that office in large measure with the Attorney-General. Admitting that two of the main characteristics of judicial power are that the Court shall only pro nounce judgment on special cases brought before it for determination, and not upon general principles, and that it shall only act when actually called upon to do so by the presentation of a specific case at its bar, it would yet have been easy for the Supreme Court, unknown, untried, apparently un wanted, to accede to what must have seemed the cry of the nation in an hour of need. If then our highest Federal tribunal is strikingly ideal and even more strikingly untrammeled in a country and age of in tensely practical government, it must be due first to the genius of its makers who con ceived a need and a place for it totally in visible to the vast majority of their fellowmen, and, second, to the genius of the men who have composed that Court, who have never served at popular demand, and who, taking the ideal the framers gave them, have practically raised it far above material con cern. If the American Constitution be a marvel to its students, is not the line of its interpreters no whit less marvellous? "Why did you not tell Judge Marshall that the people of America demanded a conviction? was the question asked of Attorney-Gen eral Wirt after the trial of Burr by the Supreme Court. "Tell him that! was the re ply. "I would as soon have gone to Herschel, and told him that the people of Amer ica insisted that the moon had horns, as a reason why he should draw her with them."
