S
FINAL ARBlTERSsOF
Supreme Court, to Whose De
cision All Must Bow, Body
of Able and Venera-
ble Jurists.
JAMES A. EDGERTON.
TBysupremm
HE death of Justice Rufus VV.
Peckha of the United States
court aud the pro
longed illness of Justice Wil
liam H. Moody indicate that President
Taft will have to appoint at least one
member of that tribunal and may have
to appoint more even if he cannot en
joy his lifelong ambition of being a
supreme justice himself. It may even
be that before his term ends he may
name a majority of the court, since
Chief Justice Fuller and Justices Har
lan and Brewer have already passed
the age limit and Justice Holmes will
do so in 1911. The law provides that
at the age of seventy a supreme court
justice may retire on full pay provid
ed he has served ten years. Fuller
and Harlan are each seventy-six, the
chief justice having been in. office
twenty-one years and the senior asso
ciate justice thirty-two years. As for
Brewer, he is seventy-two and has
been on the supreme bench twenty
years. Thus all three are eligible for
retirement. Holmes will not be sev
enty until March 8, 1911, and will not
liave. served ten years until Dec, 8,
1912, but as both these dates come
-within President Taft's term there will
l)e four possible retirements, which,
with the successor of Justice Peckham,
constitutes a majority of the court.
This is on the theory that Justice
Moody recovers and that there is no
death in the court before March 4,
1913. At that time Fuller and Har
lan will be in tne neighborhood of
lghty, Brewer seventy-six. Holmes
"TVt'SVh'
CHIEF JUSTICE MELVILLE W. FULLER.
serenty-two, McKenna nearly seventy.
White sixty-eight. Day sixty-four and.
Moody sixty. Oi1
course the mere fact
that four of the justices will be eligi
ble to retire on full pay is no indica
tion that they will do so. Indeed, the
probability is that they will not. The
only reason that supreme justices
usually retire is ill health. Of the six
ty-two that have bee" members of the
court since its inception only seven
teen have retired and thirty-five have
died in ofhYe. Many of these were
over seventj when they left the bench.
Chief Justice Taney was eighty-seven,
Justice Gabriel Duval was eighty-four,
John Marshall eighty and Justice Sam
uel Nelson eighty. The old saw about
officeholders that few die and none re
sign is not absolutely true of the su
preme court justices, but nearly so.
They are not the kind of men who are
willing to draw a salary without work
ing for it, nor are they the sort that
willingly relinquish power until death,
disease or feebleness break their hold.
Power of Our Highest Court.
And they have power of an actual,
substantial kind. They can nullify
the acts of congress and hold a rein
on the president himself. They can
-veto the statutes of any state or the
ordinances of any city. They can reg
ulate the findings of courts and pass
upon their findings, from the federal
circuit to the justice of the peace. No
official is independent of them, and
no individual is beyond their reach.
^Erue, this almost appalling power is
jiot arbitrary. It is bounded by the
constitution, by law and by precedent.
But within these limits there is still a
wide scope of choice. No king or em
peror has arbitrary power, but is
.hedged about in a thousand ways.
It has been said that the United
States supreme court is the most pow
erful body on earth. That probably is
not true, as the British house of com
mons perhaps surpasses it. Tho
raons is a body of over 000 mer.M,-J.
however our supreme court oi
President Taft May Have to
Fill Several Vacancies on
Highest Bench Before
His Term Ends.
Moreover, the commons has no direct
power over the individual outside its
own membership the supreme court
has all power over the individual that
is brought before it, subject, of course,
to the law or to its interpretation of
the law.
A Definition of the Court.
Horace Binney once defined our
court of final appeal in this way:
"The supreme court of the United
States is the august representative of
the wisdom and justice and conscience
of this whole people in the. exposition
of their constitution and laws. It is
the peaceful and venerable arbitrator
between citizens in all questions touch
ing the extent and sway of constitu
tional power. It is the great moral
substitute for force in controversies
between the people, the state and the
Union."
It is an inspiring Reflection that 80,-
000,000 people instead of resorting to
war and contention leave their .dis
puted questions to the arbitration of
nine learned, gentle and dignified old
gentlemen whose finding commands
the almost instant acquiescence of the
whole nation.
How true it is that this is a govern
ment of law and not of men! The su
preme court is the symbol of the law.
It interprets the regulations that so
ciety makes and applies them to the
individual members of society. It is
the impersonal voice of justice. Equi
ty, right, truth, wisdom, are the lights
that guide its steps. Eemoved as far
as may be from passions, factions,
commerce and personal desires, assail
ed not by ambitions or fears, clamors
or temptations, it is in an ideal posi
tion to stand for the supremacy of the
law and to uphold the public good as
against private interest. The Ameri
can people look at it in this light, and
as nearly as they have made a fetich
of anything they make it of their su
preme court. The president they cheer
or abuse, call him by his first name or
by a shorter and uglier one. Congress
they vituperate and on occasion blas
pheme. But the supreme court is set
apart in their minds. Some of them
may disagree with one or another of
its decisions, but the disagreement is
accompanied by no disrespect. Peo
ple do not think of applauding or abus
ing it, of taking liberties with the
names of its members, of cartooning
it, of making it the butt of jokes or
ridicule. Though the salaries of its
members are comparatively small and
though its work is exacting, the most
eminent men are willing to give up
leisure, comfort and princely incomes
to be honored in its service. No won
der that Judge Taft turned from his
dream of it with a sigh, even though
he turned to the power and distinction
of what is perhaps the most conspicu
ous position now on earth.
Only Eight Chief Justices.
Since its inception under President
Washington the supreme court of the
United States has had eight chief jus
tices and fifty-four associate justices.
Perhaps technically there have only
been seven chief justices, as John Rut
ledge was not confirmed by the senate,
although he sat for a short time be
fore congress convened. The other
chief justices were John Jay, Oliver
Ellsworth, John Marshall, Roger B.
Taney, Salmon P. Chase, Morrison R.
Waite and Melville W. Fuller. The
most distinguished of the list and the
one with the longest term of service
was John Marshall, who was in office
thirty-four years. Two associate jus
tices, Joseph Story and Stephen J.
Field, had an equal length of service.
It is a point worthy of note that most
of the members of the court were not
greatly distinguished in other fields.
They were not politicians, though
some of them had been senators and
cabinet officers. For the most part
they have been lawyers pure and sim
ple, m8n chosen for learning and char
acter. The last two chief justices,
Waite and Fuller, had scarcely held
any position prior to their appoint
ment. Of many of the associate jus
tices the same is true. One looks
among them almost in vain for names
highly distinguished outside of law
reports. Bushrod Washington of Vir
ginia, who served thirty-one years, we
recognize because he was a Washing
ton. John McLean of Ohio and Philip
P. Barbour of Virginia stir some faint
recollection of connection with the
government or politics or something.
Anyway, we have heard of them. Da
vid Davis we know from his connec
tion with Lincoln and Lucius Q. C. La
mar and some others from their serv
ice in the cabinet or in congress. Some,
like Joseph Story, we recognize as emi
nent law writers, but with most of
them their sole title to fameand they
could scarcely have a higheris that
they were members of the United
States supreme court.
Court's Impressive Opening.
Most writers in describing this body
call it an "august tribunal." It has
been quite a task to keep from ringing
in that hackneyed and bromidic
phrase. Well, the supreme court is
august. All that is needed to realize
the fact is to attend one of its ses
sions. A few minutes before noon
silken ropes are stretched from the
robing room to the chamber, and be
tween these ropes the justices advance
in solemn procession. Chief Justice
Fuller is the smallest one of the num
ber and Harlan, walking immediately
behind Fuller, the largest. Then come
Brewer of Kansas, who is the orator
of the court White, who was once a
Democratic senator from Louisiana
McKenna, who was McKinley's attor
ney general Holmes, who was named
for his poet father, Oliver Wendell
Holmes Day, who was for a short
time secretary of state under McKin
ley, and Moody, who was secretary of
the navy and attorney general in the
cabinet of Theodore Roosevelt. Be
fore his death Justice Peckham walked
between White and McKenna. Most
of the justices are smooth of face, al
though Fuller and Holmes have mus
taches and McKenna a aiosely cropped
beard. Despite his shortness of stat
ure, the chief justice is an impressive
figure, with his literal mane of snow
white hair and fine and scholarly face.
He was born in Maine in 1833 and was
educated in Bowdoin and Harvard.
For a time he was editor of a Demo
cratic paper and was president of the
Augusta council and city solicitor. He
then went to Chicago and became one
of the city's leading lawyers. He serv
ed for a short time in the legislature
and was several times a delegate to
Democratic national conventions. Mr.
Fuller has been chief justice since
1888.
John Marshall Harlan was born in
Kentucky in the same year as the
chief justice.
lHe was educated in the
colleges of his own state, was a Union
colonel in the war, was a candidate for
congress and governor, delegate to Re
publican national conventions, member
of the Louisiana commission and be
came a justice of the supreme court
in 1877. Despite his age, Justice Har
lan is an enthusiastic golf player.
David Josiah Brewer was born in
Asia Minor, where his father was a
missionary. He is a nephew of the
famous Field brothers, David Dudley,
Cyrus W. and Stephen J. Field, who
was himself a supreme justice. He is
a Yale graduate and began the prac
tice of law in Kansas, where he was a
judge, going from the district to the
state supreme court. He was pro
moted to the federal supreme bench in
1889.
Confederate Veteran on Bench.
Edward Douglass White was born in
Louisiana in 1845, served in the Con
federate army, was justice of the state
supreme court and United States sen
ator, taking his seat on the United
States supreme bench in 1894.
Joseph McKenna was born in Phila
delphia in 1843, but went to California
when a boy served in the legislature,
in several congresses and as United
States circuit judge was made attor
ney general in 1897 and the same year
was promoted to his present position.
Oliver Wendell Holmes was a cap
tain in the Union army and was three
times wounded. He has written vari
ous law books and served on the su
preme bench of Massachusetts before
being appointed to the United States
supreme bench in 1902.
William R. Day was born in Ohio in
1849, was common pleas judge, secre
tary of state, chairman of the Spanish
treaty commission, United States cir
cuit judge and was made supreme
court justice in 1903.
William Henry Moody is the young
est member of the court, having been
born in Massachusetts in 1853. He
was a member of congress for several
terms before entering the cabinet and
took his place on the supreme bench
in 1906.
ALL EAT GUMDR0PS NOW.
Dr. Cook's Story Brings About a Boom
In the Confection.
Confectioners of Cleveland, O., and
other cities report an increased sale of
gumdrops this fall. Candy factories
that a few weeks ago were turning out
"kisses" and advertising for "kiss
wrappers" are now working overtime
making pink gumdrops r. y.
It is Cook's story of his arctic explo
rations, in which he declared that his
Eskimos would do anything tor gum
drops, that his caused the boom in
gumdrops. -~tJ''.^0f
J^KJMt: TflUKSttAX NOTCBMBEK I, 1909^
pi wnnrommmm^^
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