# The Supreme Court in United States History/Preface

PREFACE
This book is not a law book. It is a narrative of a section of our National history connected with the Supreme Court, and is written for laymen and lawyers alike. As words are but "the skin of a living thought", so law cases as they appear in the law reports are but the dry bones of very vital social, political and economic contests; they have lost all fleshly interest. This book is an attempt to revivify the important cases decided by the Court and to picture the Court itself from year to year in its contemporary setting.
For those who wish a recital of the decisions and a collection of the biographies of the Judges, other histories of the Court are available (such as Hampton L. Carson's, prepared at the time of the Centennial of the Federal Judiciary). For those who wish a statement of the doctrines of constitutional law established in the long line of opinions of the Court, there are numerous technical law books to supply their needs. But for those who wish to view the Court and its decided cases, as living elements and important factors in the course of the history of the United States, there are few published works, other than Gustavus Myers' History of the United States Supreme Court (written from a purely Socialistic standpoint), and Albert J. Beveridge's masterly Life of John Marshall. (The ​ chapters of my book covering the period described by Beveridge were completed before the publication of his work ; they are written, however, from an entirely different standpoint, and without any attempt to rival his dramatic depiction of personalities.)
While the Court's history might be set forth more logically by tracing continuously the development of the doctrines established by the decided cases, I have purposely described it. Term by Term, in order that its decisions might be the better correlated, in the reader's mind, with the political events in the Nation's history. I have laid particular stress upon the views taken of the Court and of its important cases by con- temporary writers and statesmen ; for the impression made upon the public by the Court's decisions has often had as great an effect upon history as have the decisions themselves. At the same time, I have pointed out that contemporary appraisal of men and events is frequently mistaken, and that (as has been well said) destiny may laugh it to scorn. I have em- phasized the important part which the attacks upon the Court have played; for such attacks have often affected or modified the status of the Court and of its decisions. In carrying out this plan of preserving, as far as possible, the atmosphere of the times, I have quoted with considerable fullness from articles and letters appearing in newspapers, magazines, and else- where.^ While such a method of writing history tends to discursiveness and may offend some historical tech- nicians, I have deliberately decided to run that risk.
^ In estimating the effect of newspapers upon public (pinion, the reader must bear in mind that in the eighteenth century and for the first half of the nineteenth century* the editorials and articles of the Washington papers and the editorials and Washington ccMrespondence of the leading New York, Boston, Philadelphia, and Richmond pi^iers, dealing with the Court and its important cases, were widely copied and rei^oduced in newspapers throughout the country. ​ I have not attempted a detailed description of the Court and of its important cases later than the close of the Chief Justiceship of Waite. The succeeding thirty years of Chief Justices Fuller and White comprise a period so recent and so clearly within the view of living men as to render such detailed treatment unnecessary. Moreover, the proper historical perspective is lacking. Accordingly, I have given but a broad general outline of the leading cases and doctrines during the years 1888 to 1918.
No one can read the history of the Court's career without marveling at its potent eflfect upon the political development of the Nation, and without concluding that the Nation owes most of its strength to the determination of the Judges to maintain the National supremacy. Though, from time to time, Judges have declared that the preservation of the sovereignty of the States in their proper sphere was as important as the maintenance of the rights vested in the Nation, nevertheless, the Court's actual decisions at critical periods have steadily enhanced the power of the National Government; and the result has been that, as Edward S. Corwin has recently said in his John Marshall: "The Court was established under the sway of the idea of the balance of power. . . . The Nation and the States were regarded as competitive forces, and a condition of tension between them was thought to be not only normal, but desirable. The modern point of view is quite diflferent. Local differences have to a great extent disappeared, and that general interest which is the same for all the States is an ever-deepening one." It is interesting to surmise what would have been the status of the United States today, had the Judges, after appointment to the Supreme Bench, adopted or continued to hold the narrower ​ views of National authority and the broader views of the sovereignty of the individual States, which were undoubtedly held by most of the framers of the Constitution. To untrammeled intercourse between its parts, the American Union owes its preservation and its strength. Two factors have made such intercourse possible—the railroad, physically; the Supreme Court, legally.
In order to emphasize the subject-matter of this work, I have intentionally (and despite some modern purists in typography) used capital letters, in connection with the words "Court", "Bench" (when synonymous with Court), "Judge", "Judiciary", "Bar", "State-Rights" and "Nation", both in the quoted as well as in the original matter. For conciseness, in referring to members of the Court, I have intentionally used the word "Judge", instead of the. more technically accurate "Associate Justice."
As much new material has been gathered from unpublished MSS., I desire to acknowledge gratefully the courteous assistance which I have received from library officials, in connection with my use of the following MSS. collections: papers of George Washington, John Breckenridge, Harry Innes, John Marshall, Thomas Jefferson, James Madison, James A. Bayard, James Monroe, Caesar A. Rodney, Joseph H. Nicholson, William Wirt, Smith Thompson, James ​ Kent, John J. Crittenden, Martin Van Buren, Andrew Jackson, John McLean, John M. Clayton, Daniel Webster, Gideon Granger, Francis Granger, Thuriow Weed, Benjamin R. Curtis, and Franklin Pierce (in the Library of Congress) ; James Wilson, Richard Peters, and John Sergeant (in the Library of the His- torical Society of Pennsylvania) ; papers of Joseph Story and Timothy Pickering (in the Massachusetts Historical Society) ; papers of William Paterson (George Bancroft copies) (in the New York Public Library) ; and papers of Charles Sumner (in the Harvard College Library).
I cannot expect entire freedom from mistakes in a book containing such a mass of detail and citation; but I indulge in the hope that the reader, overlooking errors which "like straws upon the surface float", will emerge from the depths, bringing with him a new and enlarged conception of the Supreme Court's place in American history.
Charles Warren.
Washington, D. C.
March 1922
* ↑ "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Holmes, J., in Toume v. Eitner (1918), 245 U. S. 418, 425.
* ↑ "If the system of internal improvements could go on for a few years with vigor . . . this Union would be bound by ties stronger than all the Constitutions that human wisdom could devise. A railroad from New England to Georgia would do more to harmonize the feelings of the whole country, than any amendments that can be offered or adopted to the Constitution. It is intercourse we want." So wrote Abbott Lawrence of Boston to Henry Clay. March 26, 1838. Works of Henry Clay (1855), IV.
* ↑ As the statesmen, letter writers and newspapers, from 1780 through the first quarter of the nineteenth century, used capital letters according to the whim of the moment, and with no apparent logical system, I have preferred to preserve a uniformity of typography rather than an exact reproduction of their whims.