PREFACE

In bringing together for publication, several years ago, "The Constitutional Decisions of John Marshall," the scholarly editor1 made reference to the fact that "save Washington, Hamilton and Lincoln, no American stands higher (than Marshall) as a constructive statesman in the work of the evolution of the Union," and he added that "it is the peculiarity of his work of statesmanship that-practically without exception-all of it found expression in the course of judicial opinions as Chief Justice."

That great services of constructive National statesmanship should thus have been rendered in a judicial position and given expression through judicial opinions, was not a casual cir cumstance due alone to the ability of Marshall and his contemporaries in the Supreme Court. The creation of the Federal judiciary as a separate department of government, and the delegation to it of powers and duties transcending the arbitrament of controversies of private right, made the Supreme Court of the United States all that Washington called it—“the key

The Constitutional Decisions of John Marshall," edited, with an Introductory Essay, by Joseph P. Cotton, Jr., of the New York Bar. (1905.)

stone of our political fabric." DeTocqueville found, eighty-one years ago, on his visit to America, that the Supreme Court had been "placed at the head of all known tribunals," and James Bryce later observed that "The Supreme Court is the living voice of the Constitution-of the will of the people expressed in the fundamental law." Entrusted with the duty of determining co-ordinately, but finally so far as the departments of government are concerned, all questions of the meaning and requirements of the Constitution and Federal laws; entrusted with the function, in behalf of the Nation, of passing authoritatively upon those questions of adjustment and relationship which give vitality to the National power and solidarity to the Union of States, the Supreme Court has continued to be generally the most expert factor in American statesmanship and the most accurate expositor of the ultimate public opinion. Especially as to questions of Constitutional interpretation, the trained judgment, detached from local controversies too commonly called politics, has carried an authority which needed no finality of power to give it sanction; casual Presidents and changing Congresses have been in no position to speak so accurately or authoritatively of fundamental questions of the National structure and the National power. The result has been that, through the years, the Supreme Court has embodied, more than either the executive or the legislative departments of

government, those factors of accommodation and adjustment which, under Constitutional forms, have welded a workable National polity from a Confederation of hesitant and mutually distrustful States. Our framework of government and the powers committed to the judiciary under it have made the Supreme Court the exponent of the expanding Nationalism of each succeeding generation, and the statesmanship of the members of that revered tribunal has been at least no less influential than that of the leaders in legislative councils and administrative responsibility.

The impressive position of the Supreme Court as an expert factor in the formulation of a National outlook upon matters of fundamental political philosophy and procedure, and its usefulness as a continuing agency of adjustment between the departments of government and between State and Federal authority, have been commented upon by accurate observers of the American form of government. For example, in the opening paragraph of his "Constitutional Law of the United States," Dr. von Holst pointed out the reasons why, under the American system, the viewpoint of the jurist becomes an indispensable factor in the activities of the statesman, and why likewise the Federal jurist must apply, to his interpretation of the charter of government and the amplification of its expanding powers, the point of view of the constructive statesman. "Like every constitution

which has, or can have, a real life," said he, "that of the United States of America is a result of actual circumstances of the past, and not a product of abstract political theorising.

Since the life of the people is the basis of the Constitution and undergoes a steady development, the Constitution itself, quite apart from any formal alterations, must have a certain capacity for change, and this not the less real because there is no formal statement of it in the instrument itself. A Constitution which resembles a Chinese shoe can suit only a nation which has sunk into Chinese inertia. . . . If the statesman is bound to be, in the practical discharge of his duties, a conscientious jurist, the jurist must, in his work of examination and testing, always keep in mind the point of view of the statesman." In passing judgment, therefore, upon any matter of the qualifications or the public services of a member of the Supreme Court, there is necessarily kept in mind, not alone his skilled judgment in the decision of controversies between man and man, but also his outlook and vision upon National life and National powers; and in forming estimate of the statesman charged with legislative or executive leadership, account must be taken of his views of constitutional power and National dominance, even though finality of interpretation as to those matters is committed to the judicial branch of government. The statesmanship of the judicial officer and the judicial in

sight of President and legislator are each an essential part of the effective inter-adjustments of our Federal system, and many of the most sound expressions of National thought and most valuable guide-posts of National policy are to be found in the reported decisions of the Nation's great Court.

In selecting men to discharge the duties of administrative or legislative positions in the Federal sphere, there is often failure to take into account their opinions upon basic questions of governmental purpose and National power. These are looked upon as "constitutional questions"; they are thought of as committed to the determination of the Courts alone. In point of fact, however, the judiciary has only a power of review and limitation, after the legislative and executive branches have acted upon their own opinions as to the powers defined and duties imposed by the organic law. President and Congress, no less than the courts, have taken oath to support and fulfil the Constitution; its provisions are no less binding upon them than upon the Supreme Court; the constitutional opinions of the President and a majority of Congress ordinarily blend with their views of desirable policy in shaping the course of political action; and as to the overwhelming majority of the matters dealt with by the Federal government, the determinations of the executive and legislative departments are final upon questions of governmental power, duty and purpose,