CHAPTER XV.

FOURTH EPOCH: 1835-1850. THE FIRST HALF OF TANEY'S JUDICIAL CAREER: GENERAL CHARACTER OF QUESTIONS DISCUSSED: SKETCH OF CHIEF JUSTICE TANEY: SKETCHES OF JUSTICES BARBOUR, SMITH, CATRON, MCKINLEY, AND DANIEL: LEADING CASES: CHANGE IN THE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION: STATE OF NEW YORK V. MILN: BRISCOE v. BANK OF THE COMMONWEAlth of KentUCKY: CHARLES RIVER BRIDGE CASE: LIMITATIONS UPON THE DOCTRINE of the Dartmouth College Case: LamenNT OF JUSTICE STORY: MISCELLANEOUS CASES: KENDALL V. UNITED STATES: RHODE Island v. MASSACHUSETTS: CORPORATION CASES: LIMITATIONS UPON THE POWERS OF THE STATES: FLORIDA LAND CLAIMS: MARTIN v. WaddelL: SWIFT v. TYSON: THE ESTABLISHMENT OF THE DOCTRINE OF A GENERAL COMMERCIAL JURISPRUDENCE: THe Fugitive SLAVE LAW: PRIGG v. COMMONWEALTH OF PENNSYLVANIA: CASES RELATING TO SLAVERY: MISCELLANEOUS CASES: THE GIRARD WILL CASE: THF MYRA CLARK GAINES CASE: CASES OF INTER-STATE COMMERCE: THE LICENSE CASES: THE PASSENGER CASES: ADMIRALTY CASES: WARING V. CLARK: CASES AFFECTING THE RELATIONS OF THE STATE TO THE UNION: LUTHER V. BORDEN: GENERAL REVIEW OF WORK ACCOMPLISHED BY THE COURT AT THIS TIME: SKETCH of the Bar of the Supreme Court.

WE

E now enter upon the fourth great epoch in the history of the Court; an era of individual views, of doubts and queries, of numerous dissenting opinions, of strict construction of the Constitution, of State ascendency, of final submission to what Von Holst has called the "Slaveocracy," an epoch bearing bitter fruit, and serving, at the end of a quarter of a century, to bring into striking prominence the value of Marshall's work, and the necessity of appealing to his principles of interpretation if the integrity of the Union was to be preserved.

A change in the constitutional doctrines of the Court was to be expected. It was the natural and legitimate out

growth of the times.

The country was upon

The country was upon the verge of

THE OLD ORDER CHANGETH.

289

that wonderful physical advance which was checked, but not stifled, by civil war. Steam was about to be applied to locomotion on land as well as water. The sumpter mule, the pack horse, and the Conestoga wagon were to be supplanted by railroads; coal was mined; canals were dug; new highways were constructed and old ones improved; bridges were thrown across streams and rival corporations contended about tolls; post routes were extended; newspapers were distributed. The energies of the States in the direction of internal improvements were fully aroused; banking institutions multiplied. The growth of cotton manufacture stimulated slavery in the South and the factory system in the North. New and vast regions were rescued from the wilderness; immense accessions of national territory were made: the tide of foreign immigration was more than doubled; commercial or police regulations were attempted. Jealousy of national institutions became rife. The slave power contended for the mastery.

Amid the conflict of these forces old questions assumed new aspects, or new questions crowded out the old. The legality and utility of the Bank of the United States, which had been sustained in M'Culloch v. Maryland, were now denied. President Jackson vetoed the Bill to recharter the Bank, and denied the binding effect of that immortal judgment. "If the opinion of the Supreme Court," said he, "covered the whole ground of this act, it ought not to contest the co-ordinate authorities of this government. The Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others."1

'The question whether the Departments of the Government are independent of each other, and can construe the Constitution for themselves is one which has led

In this view he was supported by the advice of his AttorneyGeneral, who, in a few months, was to become Chief Justice of the United States as the immediate successor of John Marshall. The right of the States to make regulations as to passengers from foreign ports; to incorporate banks to do business in behalf of the State; to grant franchises, such as bridges, ferries and the like, notwithstanding previous grants, unless the first charter was exclusive in its terms; and the right of the State corporations by comity to make contracts and carry on business in other States-these and other questions arose, and were determined in such a manner that Judge Story wrote that he was convinced that the doctrines and opinions of the old court were losing ground, and that new men and new opinions had succeeded.

Much of what was done, however, has proved of imperishable value. It was well that certain doctrines, particularly those relating to legislative grants, should not be permitted to run to dangerous extremes. It was well that the "Commerce clause" should be critically discussed, lest the powers of the States to protect themselves against disease, pauperism, disorder and crime should be too closely shorn. In this field, Chief Justice Taney wrought better than he knew, and

to much interesting discussion. Attorney-General Bates, in a memorable opinion written in 1861 (Opinions Attys.-General, Vol. X, p. 74) reached the conclusion that the President was independent, and therefore, could lawfully suspend the privilege of the writ of habeas corpus and refuse to obey the writ when issued by the Courts. Mr. Robert G. Street, of Texas, in a paper read before the American Bar Association in August, 1883 (6 Report Amer. Bar Assn. 17), reaches the same conclusion, and his views are reviewed in a paper of great ability by Mr. Wm. M. Meigs, of Philadelphia (19 "Amer. Law Review," 190 et seq.), which exhausts the learning of the question. The results reached by these writers have not been accepted without adverse comment, and an interesting discussion, in which several important distinctions are drawn, is to be found in a paper by Mr. Sydney G. Fisher, of Philadelphia (21 "Amer. Law Review," 210 et seq.).