AMERICAN COURTS AS LEGISLATIVE CHAMBERS


In one point of view many of the greatest of the Federalists were
idealists. They seem sincerely to have believed that they could, by some
form of written words, constrain a people to be honest against their
will, and almost as soon as the new government went into operation they
tested these beliefs by experiment, with very indifferent success. I
take it that jurists like Jay and Marshall held it to be axiomatic that
rules of conduct should be laid down by them which would be applicable
to rich and poor, great and small, alike, and that courts could maintain
such rules against all pressure. Possibly such principles may be
enforced against individuals, but they cannot be enforced against
communities, and it was here that the Federalist philosophy collapsed,
as Hamilton, at least partly, foresaw that it must.

Sovereigns have always enjoyed immunity from suit by private persons,
unless they have been pleased to assent thereto, not because it is less
wrongful for a sovereign than for an individual to cheat, but because
the sovereign cannot be arrested and the individual can. With the
Declaration of Independence the thirteen colonies became sovereigns.
Petty sovereigns it is true, and singly contemptible in physical force
as against most foreign nations, but none the less tenacious of the
attributes of sovereignty, and especially of the attribute which enabled
them to repudiate their debts. Jay, Marshall, and their like, thought
that they could impose the same moral standard upon the states as upon
private persons; they were unable to do so, but in making the attempt
they involved the American judicial system in a maze of difficulties
whose gravity, I fear, can hardly be exaggerated. Before entering upon