TOPICS OF THE DAY..
THE MOTHER'S ELDEST DAUGHTER.
AT the present time Britain is having the honour of entertaining two very distinguished Americans, both of them lawyers. One is Mr. Taft, ex-President of the United States, and the holder of what is un- questionably the greatest judicial office in the world— the office of Chief Justice of the United States of America. I say the greatest judicial office in the world advisedly, and not as a compliment. I do not, of course, for a moment con- sider our courts of law or our judges as of less dignity or lower standing than those of America. It happens, how- ever, that in America there are two considerations which make the Supreme Court, and therefore its Chief Justice, of greater power than any court in the British Empire. The Supreme Court, in the first place, is supreme through- out every portion of the United States, and, in effect, in every cause. Since it, and it alone, can decide whether an Act of Legislation or of Execution is or is not ultra vires, it can draw all things into its hands. With us some matters are decided by the House of Lords, some by the Privy Council, and this applies morally as well as geo- graphically. The Judicial Committee of the Privy Council not only hears appeals from the Dominions, but also gives the last word here on a great many causes ecclesiastical, and also upon certain civil matters. Again, though the Lord Chancellor is head of that Final Court of Appeal which we call the House of Lords, and has in most instances a general supremacy among his equals and colleagues, i.e., the judges of England, that supremacy, in certain cases, belongs to the Lord Chief Justice of England —himself a member of the House of Lords and also of the Judicial Committee of the Privy Council. While these English derogations in power leave the Chief Justice of the United States and the Supreme Court over which he presides higher than any court or any individual Chief Judge of ours, there is another consideration which confers on the American Chief Justice a higher position than that belonging to any of our Judges. The Supreme Court has in the American Constitution certain functions which are beyond any functions exercised or exercisable by our courts. Under the American Constitution Sovereignty may be said to be divided between the States and the Federal or National Republic. In the last resort it is the duty of the Supreme Court to say where the dividing line comes. No doubt our courts have a certain right of inter- pretation over our statutes which in days of old came very near to this ; but they never claimed to go beyond a legiti- mate construing of the words of an Act. Our courts can never pronounce the supreme and uncreative words ultra vires. In theory always, and so almost always in practice, an Act of Parliament duly passed is unchallenge- able by any British Tribunal. None can deny its power and authority. The Act is the last word.
On the other hand, the American Supreme Court can say, and does say, though, of course, it does not do so without clear proof and without a full sense of responsibility, to the Legislatures and Executives of every one of the States, to Congress, and to the President himself : " Thus far shalt thou go, and no further." Therefore, taking the matter as a whole, we may say that the Sovereignty of the United States of America is put in commission between (1) the various State Legislatures and Executives under their various Constitutions ; (2) the Constitution of the Federal or National Republic ; (3) the Supreme Court of the United States. That last is the body which the people of the United States have decided shall in case of dispute say with whom in any particular instance the ultimate power rests. Though the Supreme Court has no veto over legislation, it can unmake a law by a declaration of ultra tires.
When I say that there is nothing that is ultra vires to the British Parliament, I am expressing not only the practice, but also the theory, of our Constitution as at present estab- lished. It is interesting, however, to remember that we once had a fundamental law which was held by many men to be ebove even an Act of Parliament. It was made, they claimed, and with truth, by the representatives of the people of England before Parliaments existed. That law was enacted or rather proclaimed at Runnimede in Magna Charts, the great charter which declared " the law of the land " in the Kingdom of England. Even as late as the time of James I. great lawyers held that- there was some- thing above the sovereignty of the King, or of Parliament, or of both combined. That thing was Magna Charts. In a debate in the House of Commons Sir Edward Coke, who had been Lord Chief Justice, declared that " Magna Charta was such a fellow as would not bear the word ' sovereignty.' " The other great lawyer whom England is welcoming is Mr. Beck, the Solicitor-General of the United States, the holder of an office to which the respect of Englishmen, and especially of all English lawyers, is already accorded. But in Mr. Beck's case the respect is heightened by the fact that in the year 1914 he did a signal service to us in par- ticular and to the English-speaking world in general. When the War broke out Mr. Beck did not wait and see which way the cat of war or of policy or diplomacy was going to jump. He showed no selfish caution, no timid reticence. With him the reaction to the War was instant. He threw himself like a good lawyer upon " the facts in the case," and at once recognized that the merits in the great struggle were with us and not with our German enemies. When that conviction was arrived at—not by instinct, but by reason and an examination of the facts—Mr. Beck did not pause to think whether it would be profitable, or popular, or politic, to give his decision to the world. He gave it because he felt and knew it was true, and for no other reason.
I shall never forget the effect that Mr. Beck's book had upon my mind. I had been wondering for many weeks how public opinion would go in the United States. Ardent admirer, nay, lover of the American people that I am proud to call myself, I was naturally exceedingly anxious to have their moral support for Great Britain, or, at any rate, some assurance that they would see matters in the true light. I did not dream of our ever obtaining their physical support. All I longed for was that they should give the moral judgment in our favour that the facts demanded. Though I will not say that I doubted the American people, even for an instant, I admit that I sometimes wondered whether the truth would ever get to them. After I had read Mr. Beck's book I had no more doubts. I felt that what he had thought at the beginning of August and published to the world in the early autumn in America must sooner or later become the thoughts of America as a whole. From that moment I had no more worries on that head.
I was exasperated, no doubt, by President Wilson's slowness, and made anxious as to the effects of the pin- pricks which we were obliged to inflict upon American commerce, but these were only minor anxieties. I felt that at any rate we were not going to be misunderstood in America, and that was what I really cared about. Thera is nothing so bitter when a man is fighting for his life, and knows he is in the right, than the thought that those of his own flesh and blood, those whom he likes best in the world, are misunderstanding his action. It must not be supposed when I speak thus of Mr. Beck that I imagine that he was the only man in America who understood our case. There were, of course, not merely hundreds, but millions of men who did so, and took our side rationally and instinctively. It was a piece of good fortune that Mr. Beck was over here and could look into the matter—that is, the right man was in the right place at the right moment. For example, I have not the slightest doubt that Mr. Taft felt as did Mr. Beck, and would have spoken as Mr. Beck did had circumstances given him the cue. Mr. Taft's great opportunity came later. We must never forget that it was he who originally thought out and laid down a great part of the foundations upon which the League of Nations, and so the Peace Treaty, was built. It is true that the superstructure was not so well designed as were its foundations, but that cannot prevent the world feeling grateful to Mr. Taft for what he did. Mr. Taft is by nature one of the least rancorous men in the world. He is also one of the least excitable and one of the most far-seeing. During his Presidency not a single word was ever said by him either to injure the cause of peace as a whole or to prevent the growth of good feeling between both sections of the English-speaking race. He has always been on the right side whenever any big question, internal or external, has been raised.
That being so, and once again remembering his great office, a very special importance must be attached to the words used by Mr. Taft at the banquet at which he was entertained by the Pilgrims and to which flocked all the Site of our lawyer world. Speaking of the relations between the two halves of the English-speaking race, he used the memorable words : " We are the eldest daughter of our mother." That and the passage which followed form the best epitome of Anglo-American history that was ever spoken or written. The final words of Mr. Taft's speech were as good and as much to the point. They will be taken to heart by every Englishman :— " As a citizen with no official mandato, I beg the Britons whom I am addressing not to be misled by temporary ebullitions of one faction or another, but to count on the fundamental public opinion of the United States in respect to our foreign relations which will always prevail in a real exigency, and which regards the maintenance of friendship with Great Britain as a most necessary security for the peace of the world."
It is pleasant reflection and an omen of high promise that a very few hours before Mr. Taft spoke as he did Mr. Beck was giving the third and last of his remarkable series of lectures on The Nature of American Institutions and their Bearing on International Relations." The lecture was given in the historic Hall of Gray's Inn, and it is delightful to think that it was honoured by the presence of the Chief Justice of the United States. Mr. Taft, it should be noted, was supported by the Lord Chancellor. In these circumstances, and considering the distinction of the lawyers present in the Hall—Lord Cave, Lord Philli- more, and a host of other legal magnates—it is not too much to say that Mr. Beck had one of the finest profes- sional audiences before whom any lawyer has ever spoken.
I have not the space at my disposal, even if I had the technical ability, to criticize or interpret, Mr. Beck's lectures, but I feel I can refer to one point, without risk of error, juridical or constitutional. In dealing with the Common Law the Solicitor-General of the United States pointed out how the inspiration which flows from its ancient and almost mysterious principles has had even greater results and wider scope in America than in England. I do not say in its home advisedly, for it is native to the race, not to any special piece of soil : it will flower as easily on the hills of a Transatlantic Berkshire as in Berkshire by the Thames.
It is the Common Law which unites us as nothing else ever will or could. When Chief Justice Marshall said that the Common Law was a part of the law of the United States, he said one of the most momentous things ever said in the history of mankind. By it a world was affected. But what makes it so specially important is the fact that it was the outcome of no personal predilection. It was due to the force of circumstances alone. The Chief Justice, from the bench in Washington, announced a fact and not a policy. If he had tried to deny that fact, the very stones of his court must have denounced him. He might have made trouble and confusion by declaring that the Common Law of England was not the law of the courts of the United States ; but he could not have done more than ruffle the surface of that august and potent stream which flowed then, and still flows, " with pomp of waters unwithstood," through all the tribunals where the English language is the language of the people. You can no more disestablish or discrown the Common Law than you can disestablish or discrown Shakespeare.
That is why English lawyers and American lawyers have always been good friends, have always understood each other, and have always been determined in the last resort to prevent any lasting injury being done through the pride or prejudice of individual politicians. The strongest link between us is that afforded by the law of the - land "—to use the famous expression from Magna Charts,. Here and in the United States " the law of the land " is the common property of the English-speaking world. But the -Common Law is only common to us speakers of English. To the rest of mankind it is either meaningless or barbarous or both. Yet it is that which has made us both great and worthy of greatness, and will make us worthier still.
J. Sr. LOE STRACHEY.
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