ith political wisdom, and Marshall's
opinion was, it is said, rejected by the Court in but two cases, and had
it in these instances been followed, would have improved the
Constitution. Unfortunately, while one may often secure the fairness one
cannot ensure the wisdom of the Bench. Judges err; a final Court of
Appeal must often give decisions which are or are supposed to be
erroneous, i.e., not a just deduction from the facts and principles
which the Court is called upon to consider. No historian will, it is
likely, now defend the doctrine of the House of Lords about marriage
laid down in _Reg._ v. _Millis_. Competent authorities question some of
the most important ecclesiastical judgments given by the Judicial
Committee of the Privy Council. The decision in the _Dred Scott Case_,
whether right or wrong, did not approve itself to eminent lawyers in the
United States. One of the decisions of the Supreme Court in the _Legal
Tender Cases_ must have been wrong; whether the last was sound is open
to debate. It is when a Court gives what is thought to be an erroneous
decision on matters exciting the feelings of large classes that the
difficulty of obtaining acquiescence in its judgments is palpable. The
judges decided, and it is quite possible decided rightly, that Ship
Money was a legal exaction, and that the Crown's dispensing power was
authorized by law. Popular opinion branded the judges as sycophants and
traitors. Chief Justice Taney and his colleagues decided in effect, and
from a legal point of view may have been right in deciding, that slavery
was recognised by the Constitution of the United States. Their decision
was denounced by the best men in the Union as infamous. The Privy
Council have laid down doctrines on matters of ritual which are held to
be erroneous by a large body of the clergy, and Ritualists have gone to
prison rather than treat the judgment of the Privy Council as of moral
validity. Clergymen are not perhaps the most reasonable of mankind, but
they are not more unreasonable than political enthusiasts. How then is
it possible to expect that a Federal tribunal would command an obedience
not yielded willingly to the laws of the Imperial Parliament?
Englishmen, indeed, might, it is possible, acquiesce in the ruling of
Federal judges, and this for two reasons: they are a legally-minded
nation; and (what is of far more consequence) a Federal Court must
represent in the main the opinions of the Federal Governm