I

THE idea of equality has in the past been regarded as essential to democracy. Only recently has any one challenged the statement in our American Declaration of Independence, that 'all men are created equal'; and yet when applied to actual life the idea is so manifestly chimerical, that we are now coming quite generally to qualify the statement by substituting 'equal in opportunity.'

But except as a vague generalization the change avails nothing. Any attempt to apply the idea would show that there is no more equality of opportunity among men than there is equality of powers. Various methods have been tried, especially by means of popular education, to minimize the outward effects of natural inequalities. Still the inequalities remain - not merely in the artificial products of organized society, such as the right to accumulate private property, but as well in every natural field of human activity.

The persistence of the idea, notwithstanding these facts, strongly suggests that there may be some principle of equality, not as yet fully defined in popular thought, which is fundamental in a democratic state. May it not be that such a principle will be found in 'Equality before the Law'?

The blackest pages of history have been written because of the lack of such equality. Again and again have nations been overturned, or dynasties de

stroyed, because judges have failed to recognize the equality of all men before the bar of justice.

Justice is blind. She takes no note of a man's appearance or position. She simply hears his case and weighs the evidence. Solomon is a good example of a just ruler. He was jury, trial judge, and court of last resort. Yet his decisions were so fair and unbiased that he was able to weld the jealous and turbulent tribes of Israel into a mighty

nation.

On the contrary his son, Rehoboam, in his very first decision, which was delivered on a question of taxation, showed so clearly his bias in favor of the privileged class who were his advisers, that ten of his twelve provinces revolted on the spot, his kingdom became hopelessly divided, and soon declined into a subject province.

Again, a celebrated Roman case in which the Decemvir, Appius Claudius, in the arbitrary exercise of his judicial power, condemned to slavery and dishonor the beautiful daughter of a Roman citizen, led to the deposing of the tyrannical Decemvirate, and the assumption of authority by the tribunes of the people.

Similarly in England, it was in part on account of the assertion by the Stuarts of their authority to administer justice as of divine right, and their flagrant abuse of that power, that James the Second lost his crown and Charles the First his head.

Then, too, revolution was the logical expression of the condition of society

existing in France in 1789. The courts in no way safeguarded the rights of the people from the rapacity and lust of the privileged class; and, by an inexorable law, outraged justice overthrew that favored class, and created for itself a new tribunal, which became in turn the relentless engine of their destruction.

These are a few instances and seem to show that in all civilized times, in the past, justice has been considered a divine quality which man might demand as his right. He has had an undefined feeling that a just God would see to it that justice was administered to his children. If kings and courts failed to do this, then plainly it was the duty of the people to overthrow these faithless agents. This is the psychology of revolution.

II

The increasing popularity of democracy as a form of government is no doubt due in large measure to the discovery that monarchy - unless it should be merely nominal, as in modern England-tends everywhere to the creation of legal tribunals which favor certain classes. Even old China is playing at democracy in the hope of securing at least some approach to justice, in place of the arbitrary decrees of an absolute despotism.

And this growing protest against monarchical systems goes on in spite of the fact that democracy is much more cumbersome and less efficient as a form of administration. If any one is inclined to question this last proposition, let him observe how frequently, in cases of acute emergency, where immediate efficiency is required, — a city, state or province is placed under martial law, giving supreme authority to the will of one man, with an armed force to carry out his orders.

The feeling appears to be that in a democracy the humblest citizen will be

guaranteed the equal consideration of his rights by courts of justice, even if he be opposed by the wealthiest or most powerful; that if democracy does not mean this then it has no excuse for being.

Unfortunately this ideal has not thus far been attained merely by adopting a democratic form of government. And this lesson the United States has had to learn at bitter cost.

Many causes, no doubt, contributed to that 'irrepressible conflict' in our country generally known as the Civil War. But probably no one will now deny that chief in the chain of causes leading to that fratricidal conflict was the decision of the famous Dred Scott case by the Supreme Court of the United States. This final proof that the slave-holding aristocracy of the South could control the highest legal tribunal in the land, and use it as a means of working injustice, aroused the people of the North to the need of vigorous action in defense of their most cherished ideals.

III

The result of the Civil War settled, for a time at least, the bitterly contested issue between national supremacy and state sovereignty, which was the natural outgrowth of the compromise effected in the Constitutional Convention of 1787; it left quite untouched, however, the semi-political character of the courts, which was a part of that compromise, and which has prevented them from realizing the ideal of democracy in the administration of justice.

This element of weakness in our judicial system was very clearly pointed out by Mr. Brooks Adams in a striking article in the April (1913) number of the Atlantic on 'The Collapse of Capitalistic Government.' That article seemed to many readers to demonstrate conclusively that 'the relation which

our courts shall hold to politics is now the fundamental question which the American people must solve, before any stable social equilibrium can be attained'; and also that the attitude which influential and powerful members of the capitalistic class shall assume toward that question is most vital, both to their own safety and to the welfare of the Republic. Since then, the problem has been worked out more thoroughly by Mr. Adams, in a book just published, on The Theory of Social Revolutions.1

A most important contribution of this volume is its discussion of the fact that not only are our American courts semi-political in their functions, but that this character was given to them from the beginning in order to safeguard the National idea; that it was in effect incorporated in the Constitution and made an integral element in our system of government.

The presentation of this fact to-day seems somewhat novel, so accustomed have we become to a feeling of unquestioning reverence both for the Constitution and the courts. And yet we are reminded that Jefferson, at the time, opposed the giving of such power to the courts, contending that a bench purposely constituted to pass upon political questions must be politically partisan,' and predicting, from the abuse of such power, many of the evils which have in fact followed.

But as Mr. Adams aptly says, "The abstract virtue of the written Constitution was not a question in issue when Washington and his contemporaries set themselves to reorganize the Confederation. Those men had no choice but to draft some kind of a platform on which the states could agree to unite.'

The convention had met 'to form a more perfect union,' the Confederation

1 Recently published by The Macmillan Co., New York.

having broken down through its own. inherent weakness. And the problem was to secure the consent of the thirteen new states, each jealous of its own prerogatives, to the formation of a federal government strong enough to do its work effectively, and to bear the strain which was sure to come upon it. The Federalists, of whom Hamilton was the mouthpiece and Washington the dominating personality, were in favor of a strong centralized government with power sufficient, if necessary, to coerce a recalcitrant state into obedience. Their opponents, under the lead of Jefferson and other strong men, were bitterly opposed to such a policy on the ground that it was monarchical in its tendency. Our written Constitution was the result; and probably it was the best that could be accomplished at the time. The Federalists, aided by the clear and forceful arguments of Hamilton and the personal influence of Washington, were for the moment in control of the situation, and were able to secure the form of a national government on paper. But they evidently recognized the fact that they were in a minority, and that some means must be devised for safeguarding what they had gained, until the new nation, by its own momentum, had acquired sufficient cohesion to survive. Otherwise, as soon as their opponents came into power the acts of state legislatures, or of Congress itself, might easily undo all that had been accomplished.

The expedient eventually adopted was to give to the federal courts, presided over by judges appointed for life by the President, the power not only to interpret the federal Constitution, but also to pass upon the constitutionality, under its provisions, of laws passed by the several state legislatures, as well as by Congress itself. This was brought about through the interpretation placed by the judges appointed by

President Washington and others on the clauses defining the judicial power.

It is quite unlikely that the Federalists would have been able to secure such an interpretation but for a fact. not mentioned by Mr. Adams, but which must have had a strong bearing upon the result, namely, that the colonies were already accustomed to a similar exercise of power by a political court in England, known as the Privy Council, and had come to recognize its necessity. In fact such necessity was obvious. In the charters of the colonies were many conflicting grants. For example, both Massachusetts and New York had grants of land extending from ocean to ocean, which covered of course the same territory as soon as the western boundary of New York was passed - a fact which has affected litigation in the latter state down to the present time. The liability to serious disagreements between the colonies, arising from such conflicts, made it necessary to have some tribunal with authority to arbitrate between them. The Privy Council fulfilled this function, and frequently declared some act of a colonial legislature to be void, on the ground that it was ultra vires. That is to say, the particular act thus nullified was beyond the power conferred upon the colony by its charter.

After the Revolution there was need of some tribunal to continue the exercise of this function between the states themselves, and also between the state and federal governments. This would naturally devolve on the Supreme Court. And, in effect, a declaration by that body that an act of Congress, or of some state legislature, is unconstitutional (that is, void under the Federal Constitution), in no way differs from a similar declaration by the Privy Council that an act of some colonial legislature was ultra vires under a colonial grant. Both were political acts,

and both were made necessary by the relations existing, first between the colonies, and afterward between the states. Thus the Supreme Court was in effect constituted an independent chamber with an absolute veto power over legislation, in the name of a constitution of whose provisions it was the final interpreter. And the judges who should wield this enormous power, being granted life-tenure of office, were not responsible to the people, as other legislators are, but were subject to impeachment for misconduct only.

In view of the fact that 'manifest destiny' pointed to Washington as the first President, the plan was well conceived for the end to be gained. But the incidental result has been to place a construction on the Constitution which has stood and still stands as an insuperable obstacle to the realization of that ideal which, as we have seen, is fundamental in democracy-Equality before the Law.

IV

The plan worked as expected, and the bench was filled with men who for a generation maintained the Federalist idea of a strong national government. To quote the words of Mr. Brooks Adams, 'General Washington chose John Jay for the first Chief Justice, who in some important respects was more Federalist than Hamilton; while John Adams selected John Marshall, who, though one of the greatest jurists who ever lived, was hated by Jefferson with a bitter hatred because of his political bias.'

At the close of John Adams's term of office as President, the Federalists were driven from power by the rising tide of popular protest against centralization, and Jefferson became President. But their theory of government had been protected so successfully by the expedient of a political court that, during

the first generation of the nation's life, the powerful opinions of Chief Justice Marshall so far strengthened the idea of national sovereignty, that when the inevitable clash came in 1861-65, the nation had gained sufficient power to prevent dismemberment, and Appomattox completed the work of 1787.

It is only fair to recognize that the Federalists had no personal interests to serve. Their motives were purely patriotic. What they planned and carried out was done to preserve the Union. But in doing this they gave to the courts a political power which might, at any time, be used for selfish purposes, and which was bound to be so used as soon as the first noble impulse toward nation-building had been lost sight of in the pursuit of personal interests.

It is evident that a certain undefined recognition of this fact, at the time, tended to create a feeling of distrust and antagonism in the minds of the people. Aside from the specific denunciations of the political character of the courts by Jefferson, there seems to have been a widespread feeling that the Federalists were somehow working to subvert the liberties of the people. Even the exalted character and devoted service of Washington himself did not save him from direct charges of this sort, as will be seen by an extract from the Philadelphia Aurora, published on the day following his retirement from the presidency:

"The man who is the source of all the misfortunes of our country is this day reduced to a level with his fellow citizens, and is no longer possessed of power to multiply evils upon the United States. If ever there was a period of rejoicing this is the moment. Every heart in unison with the freedom and happiness of the people ought to beat high with exultation that the name of George Washington, from this day, has ceased to give a currency to political

iniquity and to legalized corruption.... It is a subject of astonishment that a single individual should have carried his designs against the public liberty so far as to put in jeopardy its very existence.'

But although the Federalists were defeated in the elections and their policies denounced, no effort seems to have been made to change the political character of the courts, after the first ineffectual protests of Jefferson. He did, indeed, when he became President, undertake to impeach one of the justices of the Supreme Court on account of the exercise of the political powers thus conferred; and had he succeeded he might have carried the proceeding far enough to include the entire bench, including Marshall. But the effort failed on account of the lack of the necessary two-thirds vote in the Senate, and no further attempt was made to interfere with the political powers of the court under the Constitution.

Thus it happened, most fortunately as it would seem to us to-day, that in spite of adverse elections which placed the legislative and executive departments of the national government in the hands of their opponents, the most vital political ideals of men like Washington, Hamilton, and Adams prevailed over those of Jefferson and his supporters, through the assistance rendered by the Supreme Court in the beneficent exercise of those political functions conferred by the Constitution. But although we may admit that, historically, this particular use of the power thus granted was beneficial, what we need to recognize to-day is that, in principle, the possession of such power is both undemocratic and hazardous.

The evil effects of such exercise of power by the courts began to appear in