singular fineness and honorable ambitions. But Henry Wheaton's real and greatest claim to fame and the pride of his countrymen is founded upon his Elements of International Law, published in 1836, and its corollary, The History of the Law of Nations, printed in 1845. By these works he translated the ideal dreams of philosophers to a practical science. He is the real father and expounder of International Law. His work today is the standard of the civilized world, and is the guide of every Foreign Office. Its countless editions, each successively more elaborately annotated and brought to date, are the chart. chart and basis for all international intercourse between governments and peoples. It has been translated even into Chinese. If it did not create International Law, at least it made it a science and COördinated the rules and principles thereof into an homogeneous system. It laid down the broad principles, and adduced the evidence and the authority for their validity by apposite citations. All that has since been

done in the realm of diplomacy has been simply an exposition of those principles by added concrete cases. It has perhaps had more influence toward maintaining peace than any other one work or circumstance, since it has given to all governments common principles from which and on which to argue. Only a man of genius could have accomplished this. It is glory enough for any man. And it is singularly fitting that this genius should have been a citizen of the United States, which has from the time of Franklin adopted and practised a system of diplomacy that not only has been diametrically opposed to that of European states, but has been so peculiarly successful, that all foreign chancellaries, except Russia's, have come to adopt more and more the methods of that salutary system, which is based upon truth, honor and fair dealing, It is therefore not too much to say that the work of Henry Wheaton has had greater influence upon the world than that of any other man of modern times.

A

MERICANS are not given to the pursuit of political ideals; as people we may delude ourselves with the thought; as individuals we scoff. Yet at the apex of our government we come upon an ideal, conceded to be such by the wise of all nations; an ideal which is not an illusion, which is not of the same fabric as the conception of democracy, but which stands before us in practical form. An English observer of American life said recently: "It is a continual wonder to me that your Federal Supreme Court still exists. It is essentially an ideal body, and you Americans cherish so few political ideals." The same comment is made time and again by such of our transatlantic visitors as study the Court in its workings, but so used have we grown to taking our highest tribunal for granted we never stop to consider it. We never stop to consider if it might be mended to our material benefit.

Concerned above everything else in manufacture, agriculture and commerce, it is but natural that in city, state and national affairs we should keep our fingers close upon the machinery that is to make or mar our bankaccounts. After a municipal, a legislative, or a gubernatorial campaign it is slight wonder that visitors conclude that we do not dally with political ideals. We have been known

coerce legislatures and executives, to bring enormous private pressure on state tribunals; nothing is altogether above suspicion save one body, the Supreme Court of the land. How does it lift its head serene above the clouds? Is the Court so far removed from every day affairs that business interests give way to theoretical conceptions in that pure ether, or is it that the one august body is at the same time the desideratum of

the two qualities-efficiently ideal, practically Utopian?

How has the Court stood before the world? That great French scholar of constitutional governments, De Tocqueville, writing in the early days of our nation, said of the Court that "a more imposing judicial power was never constituted by any people. The Supreme Court is placed higher than any known tribunal, both by the nature of its rights and the class of justiciable parties which it controls.

"In all the civilized countries of Europe," he continues, "the government has always shown the greatest reluctance to allow the cases in which it was itself interested to be decided by the ordinary course of justice. This repugnance is naturally greater as the government is more absolute; and, on the other hand, the privileges of the courts of justice are extended with the increasing liberties of the people; but no European nation has yet held that all judicial controversies, without regard to their origin, can be left to the judges of common law.

"In America, this theory has been actually put in practice; and the Supreme Court of the United States is the sole tribunal of the nation. Its power extends to all cases arising under laws and treaties made by the national authorities, to all cases of Admiralty and maritime jurisdiction, and, in general, to all points which affect the law of nations. It may even be affirmed that, although its constitution is essentially judicial, its prerogatives are almost entirely political. Its sole object is to enforce the execution of the laws of the Union; and the Union only regulates the relations of the government with the citizens, and of the nation with foreign powers; the relations of

citizens amongst themselves are almost all regulated by the sovereignty of the States.

A second and still greater cause of the preponderance of this court may be adduced. In the nations of Europe the courts of justice are only called upon to try the controversies of private individuals; but the Supreme Court of the United States sumons sovereign powers to its bar. When the clerk of the court advances on the steps of the tribunal, and simply says, 'The State of New York versus the State of Ohio.' it is impossible not to feel that the court which he addresses is no ordinary body."

The Supreme Court then first of all owes its paramount importance to the peculiar function of government which the Constitution framers purposed it to perform. A constitutional government, it should be remembered, although founded on a determinate statement of the law is in no sense necessarily immutable. The fathers of the republic realized that time would bring changes of circumstance, and that the constitution. must admit of recognition of such changes. On the other hand the constitution would be the first of all the laws, the source of all later legislative inspiration, and as such no law-making body should have the power to modify it. Each act of the legislature must in principle conform to its fundamental provisions; if there were no conformity, the act could not in reality be law. In other words, the law-making body of this constitutional government could not, as in England, where Parliament was the constitution in itself, be at once the inspiration and the machinery of the law; mere enactment could not ipso facto create; the pronouncements of the legislature would or would not be laws according as they did or did not conform to the written constitution. It is a common saying that republics derive their motive power from the enactments of their representative assemblies, the people speaking through their delegates have been substantially the

be-all and the end-all of government; in these United States the truth was that the peoples' representatives were themselves created by a higher power, their voice was not to be the voice of omnipotence, their acts must fall in certain well defined lines.

Yet, said the framers, the constitution must not itself be immutable, it must adapt itself to change. So they provided that should the people through their representatives be thwarted in some desire they might constitutionally and hence lawfully alter the charter of government by amendment. This they would not do until they discovered that their repeatedly expressed desire ran counter to the basic principle of government. And this vital question, Was the act of congress constitutional, what power should decide? This, said the makers, should be the function of the Supreme Court of the land.

The function so given is unique in history. In France the constitution is, or has always been held to be immutable; no power has the legal right to change it. Hence the tribunals of France obey the laws as they are made by legislation, and it follows that the legislature, and not the constitution is supreme. If this were not so the judges of France would take the place of the people. in America, that is to say, the absolute place, inasmuch as what they pronounced to be in accord with the constitution would be law, nothing else would be, and the constitution could not be changed. We must then reach this conclusion, that where the constitution of a country is immutable, the courts must obey the legislative body in its interpretation; but where the constitution is subject to amendment, the courts may declare the acts of legislatures invalid as contrary to the fundamental law of the land. Where. as in England, Parliament is itself the constitution, the question never arises which way the courts shall look; whatever Parliament enacts is part and parcel of the constitution.

Genius for foresight was the great gift of our constitution makers. Much must be said in little if the wrangling statesmen of thirteen heterogeneous states were ever to agree. The yoke must be easy that should encircle so many wayward necks. Yet, if the statement of the law were brief, innumerable questions would arise; and, so, in order to bind the people to the charter under which they were to live, to stand between the legislature and the law, the Federal Supreme Court was erected. In this superlatively wise conception of the needs of a republican government lies the first reason for this political ideal.

"History," says Bryce, "knows few instruments which in so few words lay down equally momentous rules on a vast range of matters of the highest importance and complexity as the Constitution of the United States. . . . Probably no writing except the New Testament, the Koran, the Pentateuch, and the Digest of the Emperor Justinian has employed so much ingenuity and labour as the American Constitution, in sifting, weighing, comparing, illustrating, twisting and torturing its text." It is the fate of all great laws to be so handled, indeed, it is the greatest tribute to their genius.

It was inevitable that such a conception should at the beginning be bitterly opposed. From the outset the Supreme Court was criticised as being too far removed above the actual needs of government. Courts should be limited by well-defined restrictions; to place unlimited authority in any tribunal is contrary to Republican principies, said many members of the Constitutional Convention. Elbridge Gerry wrote, "There are no well-defined limits of the Judiciary Powers; they seem to be left as a boundless ocean that has broken over the chart of the Supreme Lawgiver, 'Thus far thou shalt go and no further,' and as they cannot be comprehended by the clearest capacity or the most sagacious mind, it would

be an Herculean labor to attempt to describe the dangers with which they are replete." Richard Henry Lee complained bitterly that "in the judges of the Supreme Court is lodged the law, the equity, and the fact." Fought over by tooth and nail, the Court finally came into being owing its existence to the wisdom of three men, Hamilton, Madison and Marshall. Opposed on almost every other matter, these three foresaw the needs that would arise, the dangers, and the remedy. Political passions would disrupt the people of the federated States, Presidents and Congresses would be engulfed in many maelstroms of popular demand, there must be some rock from which to look far over the troubled seas. It was the view-point of this Court which gave this country the advantage, as that deep student of our institutions, Bryce, has put it, "of relegating questions not only intricate and delicate, but peculiarly liable to excite political passions, to the cool, dry atmosphere of judicial determination. The relations," the same writer continues, "of the central Federal power to the States, and the amount of authority which Congress and the President are respectively entitled to exercise, have been the most permanently grave questions in American history, with which nearly every other political problem has become entangled. If they had been ieft to be settled by Congress, itself an interested party, or by any dealings between Congress and the State legislatures, the dangers of a conflict would have been extreme, and, instead of one civil war there might have been several. But the universal respect felt for the Constitution, a respect which grows the longer it stands, has disposed men to defer to any decision which seems honestly and logically to unfold the meaning of its terms. In obeying such a decision they are obeying, not the judges, but the people who enacted the Constitution. To have foreseen that the power of interpreting the Federal