BOOKS.
VAN SANITOORD'S CHIEF JUSTICES OF THE
SUPREME COURT.* 'THESE " Sketches of the Lives and Judicial Services of the Chief Justices of the Supreme Court of the United States " is an Ameri- can publication, better fitted to excite attention in America than in England. Of the five Judges contained in the volume—Jay, Rut- ledge, Elsworth, Marshall, and the present Chief, Taney—only the names of Jay and Marshall are known in this country ; and when many people hear the name of Jay, their minds recur to the active and excellent philanthropist yet living, rather than to the first Chief Justice of the Supreme Court, one of the diplomatists who negotiated the treaty of Independence in 1782, and subse-
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nently the celebrated "Jay treaty" between this country and America. The name of Marshall is known to the profession as a ju- risconsult ; but a lawyer must be very great to excite popular atten- tion beyond his own country merely as a lawyer. Kent is perhaps the only other American whose name is familiar here, and Kent was a jurist as well as a lawyer. Story was a jurist and some- thing more.
The offices held by the five men who are the subjects of Mr. Van Santvoord's book may militate somewhat against their profes- sional celebrity reaching beyond the boundaries of their own land. There is nothing in Europe resembling the Supreme Court of the United States, and little from which we can learn anything. In theory, it is the most august tribunal in the world ; for its primary function is to uphold the written constitution of the United States by abrogating any law that the legislative power may pass incon- sistent with that constitution. It is also the tribunal of last re- sort (for it a court of appeal not having original jurisdiction) in cases arising between the Federal Government and particular States; or between two or more States, or States and their citi- zens ; and, besides similar matters, has an Admiralty jurisdiction. In practice, the authority of the Court is not so great as it looks ; for it has no means of enforcing its decrees. When strongly sup- ported by public opinion—or when the matter at issue is not much regarded by a State or States, or the decision is in favour of the strongest, or the case lies between individuals—the judgment is carried out. When the great wasps are angry and resolved, the "cobwebs of the law" are broken through as on other occasions. The Cherokee Indians, for example, had long resided upon their own lands in the slave State of Georgia ; had attained, it is said, a consi- derable degree of civilization, and conducted their own affairs as an independent people. The State of Georgia coveted their lands, and, finding that the Federal Government (whose function it was) would not act in removing the Indians, began the old fable of the wolf and the lamb, by passing laws which destroyed the independence of the Cherokees. One of these was taken out of the slave codes. It declared that no White man should reside among the Indians without a licence from the Governor of Georgia, and taking an oath of a prescribed form. Several agents of the American Board of Foreign Missions were dwelling among the Cherokees, with the licence of the President of the United States, but without that of the State Governor. They were arrested by the authorities of Georgia, tried, convicted, and sentenced to imprisonment, with hard labour, for four years. The Governor of Georgia immediately tendered them a pardon, if they would comply in future with the policy of the State. Five submitted ; but two, Worcester and But- ler, appealed to the Supreme Court. Georgia did not appear: the ease was decided against her in an elaborate judgment; and she paid as little regard to the judgment as to the citation. The mis- sionaries were detained in prison ; the Supreme Government took no steps to enforce the judgment; it was said the Governor de- clared he would hang the missionaries rapier than give them up and Worcester and Butler, after contending eighteen months for the constitution, yielded, and were released. On another occasion, in which the citizen of one State sued a State to which he did not belong, the decision, or rather the interference of the Court, was so unpopular, that Congress revised the Constitution, taking away the right of an individual to proceed against a State of which he is not a citizen.
Although a biography which is wanted naturally excites more attention than one of pa man whom the reader has never heard of, there is always an interest to be created for the life and struggles of a human being. To produce this interest, however, the work must really be a life ; which is not the ease with the book before us. Mr. Santvoord knows nothing personally of his subjects, and has had no access to peculiar sources of information such as friends and
• Sketches of the Lives and Judicial Services of the Chief Justices of the Supreme Court of the United States. By George Van Santvoord. Published by Scribner, New York ; Low and Son, London.
family papers. We doubt whether he would make a popular bio- grapher even with those advantages. His mind is clear and logical, capable of arranging his matter in an orderly way, and of expressing his ideas with distinctness: but he wants dramatic variety and vi- vacity; so that the man, in Mr. Sintvoord's hands, merges in the soldier, politician, diplomatist, and lawyer,—for through these phases the earlier Chief Judges of the Supreme Court mostly passed before they attained their dignity. Instead of a biography, we have accounts of portions of the Revolution war, and the civil contests that were waged on its close till the Constitution was established ; and so with whatever events the particular judge of his five judges was connected. This necessarily overlays the work, and renders it of a very cumbersome character for English readers. This mode of proceeding, however, is the means of collecting some curious matter in connexion with the war of Independ- ence. When the subject of the biography attains the post of Chief Justice, the narrative of the leading causes brought before him is a feature of greater importance. Indeed, it is this review of the principal causes mooted and decided before the Supreme Court that gives its value to this bulky book. It is true that a direct history of the Court would have been the best mode of presenting them; for now they are mixed up with other topics, and are some- what curtly done. Still they exhibit the class of subjects which oc- cupy the Court, and thus give a living idea of its working. They contain a précis of the judgment, sometimes of the arguments, and thus furnish a glimpse of American advocacy and of the American judicial mind. In this last point of view they are valuable ; for the Americans are more preeminent as advocates and judges than they are in literature, scholarship, or philosophy. The practical and profitable nature of law suits their habit of mind ; legal precision re- strains and regulates the excitement of national volubility ; and what in the generality of speakers is nothing more than magni- loquent rhapsody is subdued to eloquence by the training of Themis. The necessity of adapting old laws to a state of society widely differing from that in which they originated, and to a social opinion less trammelled by authority, gives the American lawyer a less narrow view. The more varied pursuits that occupy the time of most Americans before they rise to forensic distinction or the judgment-seat, furnish them with a greater variety of images and illustrations, and give them a wider knowledge of life, than their English brethren attain to. Whether these things, coupled with a latent tendency to lean too much to the popular voice, may not induce a laxer tone in the arguments of the bar and the judg- ments of the bench as regards the rigid precision and science of the law, is a question. Besides the exhibition of the principal cases brought before the Supreme Court from its first establishment to the present time, the volume contains, in the form of foot-notes, numerous biographi- cal sketches of the leading judges and of some American advocates. In point of literary merit, these notices are the best things in the book, and create a more favourable opinion of the author's powers than his elaborate and cumbersome " sketches " of the Chief Justices. The notes are not strictly biographical in their nature, being mainly limited to the professional career and cha- racter of the men ; but they are close, vigorous, and weighty outlines, telling as much as the reader desires to know, and not overwhelming him with encumbering matter,—a fault which very thoroughly pervades the Lives. There is too much of the American tendency to hyperbole. The lawyers of the States are undoubtedly very able, but no large number of men in a practical profession can ever rise to celebrity, and this is still more the case where many of them are provincial practitioners. Mr. Santvoord is a wholesale dealer in words of eulogy, and generally prefixes two or three to every practitioner he mentions. He has a similar dis- position as regards everything American.
As a sample, we will take the sketch of Judge Chase ; a remark- able man, who in the vigour of his mind and his imperious temper bore some resemblance to our Chief Justice Ellenborough. Judge Chase was born ig 1741, and died in 1811: and it may be observed, that those men who were born before the Revolution seem to have had greater independence and self-reliance than the men of this century. Very few, perhaps, would have gone the length of Chase in his defiance of the popular voice ; but they would not have yielded so readily to the majority as the judges of the present day.
"The energy of his racter and the fearlessness of his temper were dis- played in a very stri manner while holding the double aloe of Chief Justice of the General and Judge of the Criminal Court in Baltimore.
Two persons of respectability had been brought before him charged with participating in a riot, on whose behalf the most overwhelming and violent popular sympathy WW1 manifested. Refusing to give bail, they were ordered to prison. The Sheriff, pointing to the mob in despair, declined to under- take the task. ' Summon the posse comitatus!' exclaimed the Judge : but the Sheriff replied that no one would obey the call. 'Summon me, then,' re- plied the Judge, with determined emphasis : ' I will be the posse comitatus, and I will take the prisoners to jail!' After some delay the prisoners yielded, and gave the required bail. Four months afterwards, when the grand jury refused to find a bill against them, he publicly censured the sheriff for returning so bad a jury. Fired with indignation, they immediately found-a presentment against the judge for the offence of holding two incompatible offices at the same time. To this Chase took no exceptions, if they really believed it to be an offence ; though he could not help observing, he said, that it seemed to flow from a supposed insult to themselves. ' You will con- tinue, gentlemen,' he remarked with biting sarcasm, 'to do your duty, and I shall persevere in mine ; and rest assured, that no mistaken opinion of yours, or resentment against me, will prevent my having a due respect for you—as a jury.' But it was in his administration of the criminal law on the bench of the Federal Courts that Judge Chase acquired the widest and most unenviable notoriety : not that it was characterized by ignorance, much less by actual injustice, for his keen and powerful intellect lifted him far above the one, and his bold independence and natural magnanimity of temper preserved him from the other. But Chase brought to the bench the feelings of a partisan ; and as a judge he enforced the criminal law, and those penal statutes which even then were widely unpopular, with the unrelenting sternness and severity of the inquisitor. Counsel as well as prisoner alike experienced his harshness of temper, and were forced to bear up under his abrupt, arbitrary, dictatorial manner. The 'conduct directed by the Court' on the trial of Fries drove Messrs. Dallas and Lewis out of the case. 'You may think to embarrass the Court,' he remarked to Mr. Dallas, but you shall find yourself mistaken.' And when the counsel had left the bar, turning to the prisoner, he observed, that, by the blessing of God, the Court would do him as much justice as the counsel who had been assigned him.' On the trial of Cooper, at Philadelphia, for seditious libel, he exhibited a comparative mo- deration,—for the reason, perhaps, that be found very little difficulty in ob- taining a conviction ; but all the daring of his temper and the dictatorial energy of his mind were called forth iu the famous trial of Callender, which finally brought down on his devoted head the long pentsup vials of the public indignation. Judge Chase started for Richmond on this trial with the de- claration, as was stated at the time, that he would 'teach the lawyers of Virginia the difference between the liberty and licentiousness of the press ' ; and, so resolutely was his mind bent on obtaining a conviction, that, it is also said on the highest authority, he instructed the Marshal not to put any of these creatures called Democrats on the jury.' During the whole trial the contest seems to have been mainly between the court and the prisoner's counsel ; and though the latter were among the most eminent lawyers atthe Virginia bar—Nicholas, Hay, and Wirt—it must be confessed that the in- domitable will and arbitrary and overbearing temper of the Judge got the better of them. The excitement of the contest appeared to elevate his spirits, to augment his boldness, and even to sharpen his intellectual vigour. * •
"The eminent counsel who defended the prisoner, foiled and brow-beaten, were filled with a just indignation. A determination to procure his im- peachment, is said to have been avowed during the trial, and for a long time counsel refused to appear before him. At length, in 1804, Mr. Ran- dolph moved the long-expected charges against him in the House of Repre- sentatives, and the famous impeachment was subsequently tried by the Senate. His conduct on the trial of Fries formed the first charge, and on Callender's trial the next five charges in the indictment ; and though a majority voted him guilty on one or two of these charges, such as for 'rude and contemptuous conduct during the trial,' &c., he was saved from con- viction by the failure to obtain a two-third vote.
"This unfortunate affair, as might well be imagined, subdued the impe- tuosity of his temper, and cast a shadow over the remaining years of his life. Thenceforth.he discharged all the duties of his station with his usual ability, indeed, but with a calm and formal moderation, and a haughty decorum, which, though it might provoke criticism, could not bring down censure on his head:"
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