The fundamental difficulties of time and space have been overcome by the triumphs of steam and electricity, wholly unforeseen and unexpected in 1787. but which now, in the case of the United States and Great Britain alike, have rendered possible the administration of government from London or from Washington on any portion of the earth's surface. At the time of the adoption of our Constitution it took about as long to travel the length or breadth of the then United States as it does now to go from New York to Manila, or from London to Peking, and orders of either government which then would have taken months to transmit, now reach their destination so as to'be put in execu non at tne otner ens of tne world in a tew hours, and sometimes in a few minutes. But in our case, we can account for the fact that a written Constitution, instead of being torn asunder and left by the way as the nation expanded, as new and wholly unexpected con ditions arose, has grown with the growth of the nation, like the hide of an animal from its birth to its maturity, so that it still embraces and covers the whole of our vast national life. We owe it, first, to the wisdom of its framers, who inserted in it only fundamental rules and principles, generally and briefly expressed, leaving it always to Congress to fill in and provide for all details; and secondly, to the vigorous and masterly manner in which the Supreme Court has exercised its essential and lawful function of construction. By this it has applied the whole instrument and each of its parts to new conditions as they arose, and has developed and strongly asserted the inherent powers of sovereignty intended to be vested in the government of the United States, and neces sarily resulting from their existence as a nation. It was our happy fortune that for 34 years, in that critical period of our history which was to determine whether we were to be a great and powerful nation, adequate for all the needs of a first-class power in the world, or only a league of States like the old Confedera tion, we had the benefit of the broad and robust intellect of Chief Justice Marshall, to enforce the liberal principles of construction which the genius of Hamilton had laid down.
In a single paragraph he states the whole theory upon which the court has administered the Constitution, and fitted it to the growing wants and changing conditions of the nation: The Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it is now universally admitted. But the question respecting the extent of the powers actually granted is perpetually arising, and will probably continue to arise, as long as our system shall exist. The powers of the government are limited, and its powers are not to be trans cended. But the sound construction of the Constitution must allow to the National Legislature that d retion with respect to the means by which the powers• it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in a manner most beneficial to the people. Let the end be legitimate, let it be within the
scope of the a:institution, and all means which are appropri ate. which are plainly adapted to that end, and which are not prohibited, but are consistent with the letter and spirit of the Constitution, are constitutional." Hamilton, in the Federalist, declared that "the judiciary is beyond comparison the weak est of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.* Montesquieu, whose works, with Blackstone's, were the textbooks of constitutional liberty which the framers had constantly in hand, de clared that "the judicial power is next to noth ing.* And it was said by another French publicist, "It has no guards, palaces or treasures, no arms but truth and wisdom, and no splendor but the justice and publicity of its judgments.* But the Supreme Court, sustained generally by the confidence and affection of the people, has more than held its own. Keeping carefully within its own limits, it has for the most part labored to keep the other departments of gov ernment within theirs, and the powers of the States and of the nation from coming into conflict. In its hands the judicial power has been the force of gravitation which has kept each member of our Federal system in its proper orbit, and maintained the essential har mony of the whole.
The closing scene in the Federal Conven tion, which made the court in a way the guard ian of the Constitution, will be ever memor able. After months of discussion, sometimes violent, more than once approaching the very brink of dissolution, in hopeless despair of com ing to any agreement, at last the grand triumph of compromise and mutual concession was ac complished, and the members met to affix their names to the instrument. Hamilton, one of the youngest, acted as scribe, and after Washing ton had signed first as "President and Deputy from Virginia,* inscribed on the great sheet of parchment the name of each State, as the dele gates came forward in geographical order to add their names. When all had signed, Frank lin, the oldest and most famous of them all, pointing to the sun emblazoned behind the chair in which Washington had presided through the whole struggle, said to those about him, aIn the vicissitudes of hope and fear; I was not able to tell whether it was rising or setting. Now, I know that it is the rising sun." After more than a century's trial of their work, the sun which Franklin saw is not yet near the zenith — much has been done, but vastly more remains to be accomplished, and it is still morn ing with our young Republic.
Consult Carson, H. L., of the Supreme Court of the United States, with Biog raphies of all Justices" (2 vols., Philadelphia 1902) • Curtis, B. R., 'Jurisdiction, Practice and Peculiar Jurisprudence of the Courts of the United States' (2d ed., Boston 1896); Moore, B. F., 'The Supreme Court and Unconstitu tional Legislation" (New York 1913).
JosEPH H. CHOATE.