But such rights as any person may have, those the courts are bound to
guard indifferently. If the courts do not perform this, their first and
most sacred duty, I apprehend that order cannot be permanently
maintained, for this is equality before the law; and equality before the
law is the cornerstone of order in every modern state.
I conceive that the lawyers of the age of Washington were the ablest
that America has ever produced. No men ever understood the principle of
equality before the law more thoroughly than they, and after the
establishment of this government a long series of great and upright
magistrates strove, as I have shown, to carry this principle into
effect. Jay and Marshall, Story and Bradley, and many, many more,
struggled, protested, and failed. Failed, as I believe, through no fault
of their own, but because fortune had placed them in a position
untenable for the judge. When plunged in the vortex of politics, courts
must waver as do legislatures, and nothing is to me more painful than to
watch the process of deterioration by which our judges lose the instinct
which should warn them to shun legislation as a breach of trust, and to
cleave to those general principles which permit of no exceptions.
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